Citation Nr: 21030454 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-60 521 DATE: May 19, 2021 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a bilateral eye condition (claimed as glaucoma) is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right hip condition, to include as secondary to service-connected disabilities, is denied. Service connection for a superficial femoral artery stent, claimed as a right thigh implant, is denied. Service connection for residuals, status post amputation of the right second toe, is denied. A disability rating in excess of 10 percent for deformity of second toe, right foot, is denied. FINDINGS OF FACT 1. The Veteran's claim of service connection for a bilateral eye condition was originally denied in a January 2014 rating decision on the basis that the disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the January 2014 decision includes information that was not previously considered, but which does not relate to unestablished facts necessary to substantiate the claim of service connection for a bilateral eye condition. 3. The Veteran's claim of service connection for a right hip condition, to include as secondary to service-connected disabilities, was originally denied in a January 2014 rating decision on the basis that the disability was not caused by a service-connected disability; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 4. Evidence received since the January 2014 decision includes information that was not previously considered, but which does not relate to unestablished facts necessary to substantiate the claim of service connection for a right hip condition. 5. A superficial femoral artery stent is not shown to be causally or etiologically related to any disease, injury, or incident during service. 6. The Veteran's right second toe amputation was not caused by a service-connected disability. 7. There is no competent evidence of worsening of the Veteran's deformity of second toe, right foot, during the period on appeal prior to the amputation of the toe due to a non-service connected disability. CONCLUSIONS OF LAW 1. The January 2014 rating decision that denied the claims of service connection for a bilateral eye condition and a right hip condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.55, 20.1103. 2. The evidence received since the January 2014 rating decision is not new and material and, therefore, is insufficient to reopen the claim of service connection for a bilateral eye condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The evidence received since the January 2014 rating decision is new but not material and, therefore, is insufficient to reopen the claim of service connection for a right hip condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The criteria for service connection for a superficial femoral artery stent, claimed as right thigh implant, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for residuals, right toe amputation, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. A disability rating in excess of 10 percent for deformity of second toe, right foot, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May to September 1975, and from January 1978 to March 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March and July 2017 by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. New and Material Evidence Generally, an unappealed Regional Office decision denying a claim may not thereafter be readjudicated or allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Veteran's claim of service connection for a bilateral eye condition, claimed as glaucoma, and for a right hip condition, to include as secondary to service-connected disabilities, were originally denied in a January 2014 rating decision on the basis that the conditions were not incurred in or caused by service, and the right hip condition was not caused or aggravated by any service-connected disability. The Veteran was notified of the January 2014 decision that same month; he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the January 2014 decision became final. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. Bilateral Eye Condition As a preliminary matter, the Board notes that the Veteran has not been afforded a VA examination for his eye condition, and a medical opinion has not otherwise been obtained as to the nature and etiology of such. However, the duty to obtain an examination or medical opinion under 38 C.F.R. § 3.159 (c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim). As explained below, the Board finds that no new and material evidence has been received with respect to the claims of service connection. Hence, there is no need to discuss whether examinations and/or opinions are necessary. Evidence added to the claims file since the January 2014 includes VA treatment records, the Veteran's testimony during the April 2021 hearing, and various lay statements from the Veteran and his representative. This evidence reflects that the Veteran experiences glaucoma. However, there is no new competent evidence that glaucoma had its onset in service or is otherwise related to service. Overall, the Board finds that the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, is either not relevant to the claim of service connection for a bilateral eye condition, or does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the "low threshold" for determining whether evidence is new and material pursuant to Shade, the criteria for reopening the claim of service connection for a bilateral eye condition are not met. Furthermore, while VA has an obligation to assist the Veteran in the development of his claim, it is the Veteran's responsibility to present and support a claim of service connection. 38 U.S.C. § 5107 (a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). As the Veteran has not identified or presented any new and material evidence pertaining to his claim of service connection for a bilateral eye condition, the application to reopen this claim must be denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim under consideration, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The application is denied. Right Hip Condition Pertinent to the claim of service connection for a right hip condition, evidence added to the claims file since the January 2014 rating decision includes VA treatment records, the report of a May 2017 VA examination, testimony from the April 2021 hearing, and various lay statements made by the Veteran and his representative. The evidence reflects that the Veteran has been diagnosed with osteoarthritis of the right hip and that he continues to assert that this condition is due to his service-connected disabilities of the feet. However, there is no new competent evidence that such a nexus exists. The May 2017 VA examiner confirmed the osteoarthritis diagnosis but explained that the condition was not caused by his foot conditions, as it had an unrelated pathophysiology. Thus, the Board finds that the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, is either not relevant to the claim of service connection for a right hip disability, or does not provide a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that, even when considering the "low threshold" established in Shade, the criteria for reopening the claim of service connection for are not met. As above, the benefit of the doubt doctrine does not apply. Id. The application is denied. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Superficial femoral artery stent The Veteran asserts that he has a right thigh implant and contends generally that it is related to his military service. He has not provided details concerning any in-service onset or any specific link between the condition and any in-service event. His service treatment records are absent of any complaints of, or treatment for, such disorder. A January 1979 separation examination showed the Veteran's vascular system was normal. Post-service treatment records show that the Veteran had a superficial femoral artery stent implanted in his right thigh in January 2017, to treat circulation problems in that leg which were due to peripheral artery disease. However, even with clinical confirmation of the claimed condition, there is no evidence suggesting a potential correlation between such and service. The Veteran has not made any assertions regarding the correlation between his stent and service, other than a general assertion that service connection is somehow warranted. The stent was implanted almost 40 years following the Veteran's discharge from service, to treat a condition that the record suggests developed due to, or was aggravated by, his cigarette smoking. As such, there is no evidence of record suggesting that the Veteran developed the condition until many years after service. Given the lack of any suggested link between the Veteran's artery stent and service, the evidence fails to establish a basis for awarding service connection. Moreover, VA's duty to provide a medical examination and/or opinion regarding the claim is not triggered in the instant case. Specifically, there is no indication that the Veteran's condition is related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or service-connected disability). In this regard, the Veteran's service treatment records are negative for such claimed condition and he has not described any in-service injury, disease, or event that he believes led to such. The United States Court of Appeals for Veterans Claims 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 this claim. Accordingly, the preponderance of evidence is against the Veteran's claim, and there is no reasonable doubt with regard to any of these claims that may be resolved on the Veteran's behalf. Therefore, service connection is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Residuals, right toe amputation The Veteran seeks service connection for residuals of a right toe amputation. By way of background, service connection was initially granted, effective October 1981, for a deformity of the second toe of the right foot. In a March 2017 procedure, the second toe of the right foot was amputated. At the April 2021 hearing, the Veteran testified that he believed a pin which was placed in his toe while in service, caused the issues which led to amputation of the digit. The Board notes that the Veteran does not allege, nor does the record reflect, that the amputation is directly due to service. Rather, the Veteran has claimed throughout his appeal that his toe was amputated secondary to his service-connected toe deformity. 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 consider "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). In relation to his claim, the Veteran underwent a VA examination in April 2017. At that time, the examiner noted the amputation of the service-connected toe, and the Veteran's reports that the condition caused difficulty with walking and standing. In a May 2017 opinion, the examiner concluded that the residuals of the amputation of the right second toe were less likely than not the result of, or progression of, his service-connected right toe deformity. In support of this conclusion, she explained that the Veteran had a long history of smoking and was diagnosed with peripheral occlusive arterial disease, which caused poor blood flow to his lower extremities. The Veteran developed an ulcer on his service-connected second right toe due to this occlusive disease. As a result of that ulcer, the toe was amputated. Thus, the removal of the toe was not due to the service-connected deformity. The Board accords great probative weight to the opinion proffered by the April 2017 VA examiner, which found no nexus between the Veteran's toe amputation and a service-connected disability. The examiner provided a well-supported rationale, relying on and citing to the records reviewed. Moreover, she offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Notably, there is no contrary medical opinion of record. To the extent that the Veteran himself asserts that his right toe was amputated due to his service-connected disability, the Board does not question the Veteran's sincerity in his belief that there is a correlation. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his toe amputation no probative weight. Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the VA examiner is more probative than the Veteran's assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinions provided by the VA examiner. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran's deformity of the second toe of the right foot was rated at 10 percent disabling under Diagnostic Code 5284. The appeal period before the Board begins on March 29, 2016, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period ends, however, on March 3, 2017, as that is the date the Veteran's second toe of the right foot was amputated due to, as explained above, a non-service connected disability. (The Board notes that, if a non-service connected cause necessitates the amputation of an extremity, resulting in elimination of a service connected disability present at the site of the amputation, VA will not sever service connection for, or reduce the evaluation of, the now-absent service connected disability.) Under Diagnostic Code 5284 for Foot Injuries, other, a 10-percent rating is warranted for impairment of moderate degree, a 20-percent rating for moderately severe impairment, and a 30-percent rating for severe impairment. 38 C.F.R. § 4.71a. The note to Diagnostic Code 5284 indicates that a maximum 40-percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. Unfortunately, the Veteran's service-connected right toe disability was not formally evaluated during the period on review. VA treatment notes from the time period show some treatment of the right toe, mainly of a nonhealing blister that developed in October 2016 as a result of severe artery disease. In a December 2016 VA treatment note, the Veteran was seen for right toe pain related to the blister. At that time, the toe pain was attributed to vasculopathy; upon evaluation, no acute musculoskeletal problems were found. The Veteran testified at the April 2021 hearing that since he initially injured his toe, he experienced foot pain which was severe in nature. There is otherwise no evidence which addresses the status of the Veteran's service-connected right toe disability during the brief look-back period prior to the March 2017 amputation. Thus, the Board finds that the record does not contain evidence which would warrant disturbing the disability rating assigned for the period on appeal prior to the amputation. The Board acknowledges the Veteran's assertion that, starting in service and prior to amputation, he experienced severe pain in his right second toe. The Board notes that the Veteran, as a layperson, is competent to report his experienced symptoms of right toe pain. See Layno, supra. However, the Veteran is not competent to associate such symptoms with a specific disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. Here, the Board finds that the conclusion of the medical providers who treated his foot during the appealthat the right toe pain was due to an ulcer related to a non-service connected vascular disabilityto be more competent, and probative, than his own assertions regarding etiology. The evidence of record does not otherwise contain medical evidence showing an increased rating was warranted for the appeal period from March 2016 until the March 2017 amputation of the toe. Thus, a higher rating 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 and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.