Citation Nr: 22020006 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 18-00 937 DATE: April 4, 2022 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for diabetes mellitus is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a right foot condition is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a left foot condition is denied. New and material evidence not having been received, the application to reopen the claim of service connection for a disorder of the left hand, including peripheral neuropathy is denied. New and material evidence having not been received, the application to reopen the claim of service connection for a right eye condition secondary to diabetes mellitus is denied. Service connection for hypertension, claimed as secondary to diabetes mellitus, is denied. Service connection for fecal leakage, claimed as secondary to diabetes mellitus, is denied. Service connection for frequent urination and leakage, claimed as secondary to diabetes mellitus, is denied. Service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, is denied. Service connection for right upper extremity neuropathy, claimed as secondary to diabetes mellitus, is denied. Service connection for left lower extremity neuropathy, claimed as secondary to diabetes mellitus, is denied. Service connection for right lower extremity neuropathy, claimed as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. Service connection for diabetes mellitus, a right foot disorder, a left foot disorder, a disorder of the left hand, and a right eye disorder was denied by the Regional Office (RO) in a November 2009 rating decision. The Veteran was notified of this decision and of his appellate rights, but did not file a timely appeal. 2. Since the November 2009 decision denying service connection for diabetes mellitus, a right foot disorder, a left foot disorder, a disorder of the left hand, and a right eye disorder, the additional evidence, not previously considered, is cumulative and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension is not proximately due to or aggravated by a service-connected disease or disability. 4. The Veteran's fecal leakage is not proximately due to or aggravated by a service-connected disease or disability. 5. The Veteran's frequent urination and leakage is not proximately due to or aggravated by a service-connected disease or disability. 6. The Veteran's erectile dysfunction is not proximately due to or aggravated by a service-connected disease or disability. 7. The Veteran's right upper extremity neuropathy is not proximately due to or aggravated by a service-connected disease or disability. 8. The Veteran's left lower extremity neuropathy is not proximately due to or aggravated by a service-connected disease or disability. 9. The Veteran's right lower extremity neuropathy is not proximately due to or aggravated by a service-connected disease or disability. CONCLUSIONS OF LAW 1. The additional evidence submitted subsequent to the November 2009 rating decision, which denied service connection for diabetes mellitus, a right foot disorder, a left foot disorder, a disorder of the left hand, and a right eye disorder is not new and material; thus, the claim for service connection for this disability is not reopened, and the November 2009 rating decision is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for hypertension as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for fecal leakage as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for frequent urination and leakage as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for erectile dysfunction as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for right upper extremity neuropathy as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for left lower extremity neuropathy as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for right lower extremity neuropathy as secondary to a service-connected disease or injury are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from April 1970 to November 1970. In November 2020, a videoconference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Following the Board hearing, additional VA medical records that could be pertinent to the claim were added to the claims folder. In January 2022, the Veteran waived initial consideration of these records by the Agency of Original Jurisdiction. Service Connection Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In general, presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. There is an exception regarding herbicide agents exposure. An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(v). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. Diabetes mellitus, Type II is included among the diseases that may be presumed to be due to herbicide agents exposure. Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus, bilateral foot conditions, a disorder of the left hand, or a right eye disorder Service connection for diabetes mellitus, bilateral foot conditions, a disorder of the left hand, and a right eye disorder was previously denied by the regional office (RO) in a November 2009 rating decision on the basis that the Veteran had not manifested any of the claimed disorders during his period of ACDUTRA and there was no support for his contention that he was engaged in an activity whereby he was exposed to herbicide agents. The Veteran did not appeal this determination or submit new and material within one year of that decision; therefore, it is final. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Evidence of record at the time of the November 2009 rating decision included the Veteran's contentions that he had been exposed to Agent Orange during his period of ACDUTRA; service medical records (STRs) that showed no evidence of diabetes mellitus, bilateral foot conditions, a disorder of the left hand, or a right eye disorder; and the Veteran's service personnel records (SPRs) that showed he was engaged as a radio equipment and electronics repairman during service. As noted, service connection was denied on the basis that there was no evidence of any of the claimed disabilities during service and no evidence to support the Veteran's claim of exposure to herbicidal agents such as Agent Orange while he was participating on ACDUTRA. In October 2016, the Veteran submitted an application to reopen the claim of service connection for diabetes mellitus and disabilities that he claimed were secondary thereto. Evidence received subsequent to the November 2009 rating decision includes post-service treatment records that demonstrate continued treatment for diabetes mellitus and complications therefrom. After detailing the efforts made to verify the Veteran's exposure to Agent Orange, a July 2017 VA memorandum found that the Veteran could not be placed near the storage area. It was additionally noted that ACDUTRA or INACDUTRA did not qualify the Veteran for service connection for a disease manifested several years later under VA regulations. The Veteran submitted a September 2017 wherein he related during his period of ACDUTRA he that was engaged in cleaning up debris following Hurricane Camille including 15,000 barrels of Agent Orange that had been damaged and spilled. The Veteran repeated this contention in testimony before the undersigned in November 2020. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case the Veteran has made identical contentions regarding his claimed exposure to herbicidal agents, including Agent Orange. While additional attempts to verify this exposure have been made, no such exposure has been verified. Moreover, the Veteran is not shown to have participated in activities that "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft." This is the only participation while performing ACUDTRA for which the presumption for service connection resulting from herbicide exposure may be applied under the law. Thus, the evidence submitted by the Veteran consists primarily of records of treatment many years after service that does not indicate in any way that the conditions are service connected. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). As such, the November 2009 denial of service connection is final and the application to reopen the claims must be denied. Service connection for hypertension, fecal leakage, frequent urination and leakage, erectile dysfunction, right upper extremity neuropathy, left lower extremity neuropathy, and right lower extremity neuropathy as secondary to diabetes mellitus The Veteran contends that service connection should be established for the above referenced disabilities as being secondary to diabetes mellitus. As the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection is currently in effect for major depression, rated 100 percent disabling; bilateral tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensable. Service connection has not been established for diabetes mellitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether any of the Veteran's claimed disabilities may be considered to be proximately due to or the result of, or were aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current disabilities, the evidence of record persuasively weighs against finding that they are proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. As noted above, service connection hs not been established for diabetes mellitus. The Veteran has not contended, nor has any evidence been submitted showing, that these disabilities may be related to depression, tinnitus or hearing loss. While the Veteran believes he should be service-connected for diabetes mellitus and associated disabilities, he is not competent as a layperson to provide a nexus opinion regarding these issues. The questions involved in this case are medically complex, as they require knowledge of how the different body systems work and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). For these reasons, the Board finds that the evidence of record persuasively weighs against the Veteran's claims of service connection and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, and the claims must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.