Citation Nr: 21042665 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-46 573 DATE: July 13, 2021 ORDER New and material evidence having not been received, the appeal to reopen the previously denied claim of service connection for diabetes mellitus is denied. Service connection for neuropathy of the left hand is denied. Service connection for neuropathy of the right hand is denied. REMANDED A rating in excess of 20 percent for a service-connected lower back disorder is remanded. A rating in excess of 20 percent for service-connected neuralgia of the sciatic nerve of the right lower extremity is remanded. A rating in excess of 20 percent for service-connected neuralgia of the sciatic nerve of the left lower extremity is remanded. FINDINGS OF FACT 1. An August 2012 rating decision denying a claim for service connection for diabetes mellitus was not timely appealed and became final; evidence received since that time including post-service treatment records do not constitute new and material evidence because this evidence does "raise a reasonable possibility of substantiating" the claim. 2. The Veteran has not been diagnosed with left hand neuropathy. 3. The Veteran has not been diagnosed with right hand neuropathy. CONCLUSIONS OF LAW 1. New and material evidence has not been received to warrant reopening of the claim for service connection for diabetes mellitus. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria have not been met for service connection for left hand neuropathy. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria have not been met for service connection for right hand neuropathy. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1971 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, a Board hearing was held before the undersigned but, unfortunately, the transcript is unavailable. The Veteran has been offered another hearing but did not respond to this inquiry; therefore, the Board must adjudicate the claims based on the evidence of record. 1. New and material evidence having not been received, the appeal to reopen the previously denied claim of service connection for diabetes mellitus is denied. Legal Criteria As a threshold matter, the Board must determine if new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. To reopen a claim, "new and material evidence" must be added to the record. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. To be considered "material," the evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This means that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence must be added to the record since the time that the claims were finally disallowed on any basis (that is, including a denial of reopening) not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO has been properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. § § 5108, 7105(c)). Factual Background In August 2012, the RO denied the Veteran's claim for service connection for diabetes mellitus on the basis that this condition was neither incurred in nor caused by service; the claim for diabetes mellitus was not addressed on a presumptive basis due to herbicide exposure because the Veteran did not have service in Vietnam. The Veteran did not perfect an appeal or submit new and material evidence within one year of the decision; therefore, the decision became final. Analysis At the time of the August 2012 rating decision, the Veteran's service and post-service treatment records were reviewed. The Agency of Original Jurisdiction (AOJ) found that evidence indicated that the Veteran's service treatment records were silent for treatment for or a diagnosis of diabetes during service and there was no evidence that diabetes manifested to a compensable degree within one year of discharge. The claim was ultimately denied because the AOJ found that the Veteran's diabetes mellitus was not incurred in or caused by service. The evidence added to the record since the August 2012 rating decision includes post-service treatment records as well as the Veteran's testimony provided at the Board hearing. The new evidence does not indicate that the Veteran's diabetes is causally related to his service. As such, the Board finds that although the Veteran's post-service treatment records as well as his Board testimony are new, this evidence is not material to the claim because it does not support a finding that the Veteran's diabetes is causally related to his service. Because there is no new and material evidence, the claim cannot be reopened. 2. Service connection for neuropathy of the left hand is denied. 3. Service connection for neuropathy of the right hand is denied. Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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). Without evidence of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). In this case, there is no evidence that the Veteran has been diagnosed with neuropathy in either hand. While the Veteran may believe that he has peripheral neuropathy of the hands and is competent (qualified) to report observable symptoms, he is not competent to provide a diagnosis because there are multiple potential causes for the type of symptoms (e.g. numbness and tingling) that may be associated with peripheral neuropathy and these causes are not distinguishable by observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for neuropathy of the right and left hands must be denied. REASONS FOR REMAND A rating in excess of 20 percent for a service-connected lower back disorder is remanded. A rating in excess of 20 percent for service-connected neuralgia of the sciatic nerve of the right lower extremity is remanded. A rating in excess of 20 percent for service-connected neuralgia of the sciatic nerve of the left lower extremity is remanded. The record indicates that the Veteran was unable to attend an August 2016 VA examination to determine the current severity of his lower back condition and neuralgia of the sciatic nerves of the bilateral lower extremities. The Veteran testified at the Board hearing and indicated on his Form 9 that he required transportation to the examination but he was never picked up by the van that was supposed to take him to the examination. Accordingly, on remand the VA should schedule the Veteran for a VA examination to determine the severity of his lower back condition and neuralgia of the sciatic nerves of the bilateral lower extremities. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected neuralgia of the sciatic nerves of the bilateral lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for a new examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain and IVDS. The claims file and a copy of this Remand Order must be made available to the clinician to review. 4. The examiner must perform appropriate range of motion testing, expressing all findings in degrees and noting the degree where painful motion, if any, is present. Further, note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive use testing. This information must be derived from joint testing for pain on active and passive motion, and in weight-bearing and non-weight-bearing. The examiner is asked to describe whether pain significantly limits functional ability during flare ups and repeated use over, and if so, the examiner must estimate range of motion during flare ups and repeated use over time, including in consideration of the Veteran's lay statements. If the examination does not take place during a flare up or after repeated use over time, the examiner should glean information regarding the flare ups severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. A complete rationale for all opinions should be offered. If the examiner is unable to reach an opinion without resort to speculation, he or she must explain the reasons for the inability to do so. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.