Citation Nr: 1304545 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-05 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bilateral knee disorder. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left great toe disorder. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disorder. 4. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an adjustment disorder or other acquired nervous disorder. 5. Entitlement to service connection for a bilateral arm disorder. 6. Entitlement to service connection for a chronic disability manifested by chest pain. 7. Entitlement to service connection for a bilateral hip disorder. 8. Entitlement to service connection for a right shoulder disorder. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The appellant served in the Reserve Component (RC) from January 1974 through June 1980, during which period his service consisted of various periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appellant testified before the undersigned Acting Veterans Law Judge in a hearing at the RO in July 2009. A transcript of the hearing is of record. In December 2009 and in April 2011 the Board remanded the case to the RO for further development. FINDINGS OF FACT 1. Service connection for chronic lumbosacral strain, a left big toe injury, a bilateral knee injury and nervous condition due to anxiety was denied on the merits by a rating decision in November 1987 and reopening of those claims was denied by a rating decision in May 2002; the appellant was notified of those denials but did not appeal or submit material evidence within the appeal period. 2. Evidence received since May 2002 is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims for service connection for low back disorder, left great toe disorder, bilateral knee disorder or adjustment disorder/other acquired nervous disorder. 3. The most competent and credible evidence of record does not show the Veteran being diagnosed with bilateral arm disorders, bilateral hips disorders, or a right shoulder disorder at any time during the pendency of the appeal. 4. The most competent and credible evidence of record does not show the Veteran being diagnosed with an underlying disorder causing his claimed chest pains at any time during the pendency of the appeal. 5. The appellant has no service-connected disabilities on which a claim for TDIU can be based. CONCLUSIONS OF LAW 1. The criteria to reopen a claim of entitlement to service connection for a bilateral knee disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 2. The criteria to reopen a claim of entitlement to service connection for a left great toe disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 3. The criteria to reopen a claim of entitlement to service connection for a low back disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 4. The criteria to reopen a claim of entitlement to service connection for an adjustment disorder or other acquired nervous disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 5. The criteria for entitlement to service connection for a bilateral arm disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 6. The criteria for entitlement to service connection for a chronic disability manifested by chest pain are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 7. The criteria for entitlement to service connection for a bilateral hip disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 8. The criteria for entitlement to service connection for a right shoulder disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 9. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim. Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board finds that letters dated in March 2004 and March 2010 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra, and notice of the reason for the earlier denial of some of his claims as required by the Court in Kent, supra. The Board also finds that the March 2010 letter complied with the Board's December 2009 remand directions. See 38 U.S.C.A. § 5103(a); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). While the Veteran was not have provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claims, the Board finds that providing him with this notice in the above letters followed by a readjudication of the claims in the April 2010 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if VA did not provide adequate notice in the above letters, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above VCAA letters as well as the rating decisions, statements of the case, supplemental statements of the case, and Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2009 Board hearing, the Veteran was assisted at the hearing by an accredited representative and that representative and the Acting VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disabilities are related to his service as well as cause him to be unemployable. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained or attempted to be obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service records including his service treatment records and his records from the Temple VA Medical Center in substantial compliance with the Board's December 2009 remand orders. See Stegall, supra; D'Aries, supra; In this regard, a Formal Finding of Unavailability of Federal Records in November 2007 demonstrates that no additional service treatment records are available from the National Guard. Similarly, Formal Findings of Unavailability of Social Security Administration (SSA) Records in July 2007 and February 2009 show the appellant's SSA disability file had been destroyed. Finally, a Formal Finding of Unavailability in November 2010 shows that although the appellant asserted treatment at the Temple, Texas, VA Medical Center (VAMC) there are no medical treatment records from that facility. The record also shows that the Veteran was notified of the unavailability of these records. As to the service connection claims, the Veteran was not provided VA examinations. The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Given the above standard, the Board finds that a remand for VA examinations is not required because service treatment records are negative for the claimed disorders as well as documentation of the alleged injuries, the post-service record is negative for the claimed disorders, the Board finds the lay statements from the Veteran and others regarding a nexus between the alleged current disabilities and service conclusory generalized statements for reasons that will be explained below, the Board does not find the lay statements from the claimant and others regarding an-inservice injury as well as continuity of symptomatology competent and credible evidence for reasons that will be explained below, and the Board does not find the lay statements from the claimant and others regarding a current diagnosis of the claimed disorders competent and credible evidence for reasons that will be explained below. See 38 U.S.C.A. § 5103A(d); Also see Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find his statements credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the claims to reopen and the TDIU claim, the record also does not show that the Veteran was afforded VA examinations. Nonetheless, the Board finds that adjudication of these claims may go forward without the examinations because, as explained below, the Veteran has not submitted new and material evidence to reopen any of his claims and the appellant is not service connected for any disability. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's record including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence Applicable Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A claim that has been denied in an unappealed RO decision generally may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The language of 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening." The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Evidence and Analysis Service connection for chronic lumbosacral strain, a left big toe injury, a bilateral knee injury and nervous condition due to anxiety was denied on the merits by a rating decision in November 1987. The appellant was advised of the denial by a letter dated in November 1987; he did not appeal the denial or submit any new evidence relevant to these issues during the appeal period. 38 C.F.R. § 3.156(b) (2012). The November 1987 rating decision is accordingly final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Thereafter, the appellant requested reopening of those claims in November 2001, but his request was denied by a rating decision in May 2002 based on a determination that new and material evidence had not been received regarding the merits of the claims. The Veteran did not appeal the May 2002 rating decision. In the first year following the May 2002 rating decision, the RO obtained and associated with the claims file additional VA treatment records dated from June 2002 to August 2002 that noted the Veteran's continued complaints of low back pain as well as noted that X-rays of the lumbosacral spine were normal. In this regard, the Board notes that medical records documenting the Veteran's post-service complaints and treatment for low back pain without a link between the post-service low back disability and military service were part of the record at the time the May 2002 rating decision denied the claim. Accordingly, the Board finds that this evidence is not new and material as it is cumulative of evidence previously considered. 38 C.F.R. § 3.156(a). Therefore, the Board finds that the record does not show that the Veteran, following the May 2002 rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period. 38 C.F.R. § 3.156(b) (2012). Accordingly, the Board finds that the rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). VA is required to review for newness and materiality of the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). Accordingly, the Board will review evidence received since May 2002 to determine if such evidence is new and material. New and material evidence: bilateral knee disorder A rating decision in November 1987 denied service connection for bilateral knee injuries because nothing on examination related the disorder to service. The appellant did not appeal or submit additional evidence within the appeal period. In November 2001 the appellant submitted a request to reopen his claim for service connection for a back condition. He did not submit any additional evidence in support of his claim, and reopening was denied in a rating decision in May 2002. The evidence of record in May 2002 relating to a bilateral knee disorder consisted of the following: (1) service treatment records (STRs) including a medical examination report dated in June 1974 showing normal examination of the lower extremities; (2) correspondence from Dr. Carey Windler showing the appellant injured his left knee in a workplace accident in August 1980; (3) VA X-ray of the knees in September 1987 showing normal knees bilaterally; and, (4) VA examination in September 1987 showing history of injury to both knees with history of surgery to left knee for gunshot wound. Evidence received since May 2002 relating to the claimed bilateral knee disorder consists of the following: (1) private medical treatment records showing the appellant had a work-related left knee injury in August 1980 for which he received a 25 percent disability rating under worker compensation for the left knee; (2) private medical records showing normal X-ray of the left knee in January 1997; (3) private X-ray of the left knee in August 2000 showing ossification possibly related to old trauma but no other significant findings; and, (4) VA X-ray of the right knee in August 2007 showing normal knee. Review of the evidence received since May 2002 shows nothing therein to be material to reopening of the claims for either knee. The new evidence continues to show the left knee as having residuals of a workplace injury after discharge from service and continues to show no diagnosed disorder of the right knee. There continues to be no evidence associating a current disorder of either knee to service. Thus, no element of service connection that was missing prior to May 2002 is shown or suggested in the evidence received after that date, and the new evidence is not material toward reopening these claims. Under these circumstances, the Board concludes that new and material evidence to reopen the claim for service connection for a disorder of the bilateral knees has not been received, and the rating decision of May 2002 remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). New and material evidence: left great toe disorder The rating decision in November 1987 denied service connection for a left big toe injury because nothing on examination related the disorder to service. The appellant did not appeal or submit additional evidence within the appeal period. In November 2001 the appellant submitted a request to reopen his claim for service connection. He did not submit any additional evidence in support of his claim, and reopening was denied in a rating decision in May 2002. The evidence of record in May 2002 relating to a left great toe disorder consisted of the following: (1) STRs including a medical examination report dated in June 1974 showing normal examination of the feet; (1) claim for service connection for left great toe injury submitted in November 1982 and asserting treatment in service at Fort Knox in November 1974-January 1975; (2) VA orthopedic examination dated in February 1983 showing the appellant asserted having intermittent pain in the left great toe since stumbling over a rock in 1974 at Fort Knox, Kentucky, and also showing diagnosis of no current orthopedic disorder; (3); compensation/pension claim dated in June 1987 and asserting treatment in service in 1974 at Fort Knox for a foot injury; and, (4) VA examination in September 1987 showing a history of old left ankle sprain but normal examination of the left foot. Evidence received since May 2002 relating to the claimed left great toe disorder consists of the following: (1) VA outpatient treatment note in June 2002 in which the appellant complained of current itching/burning feet and denied history of foot trauma; (2) VA podiatry consult in February 2003 showing essentially normal feet; (3) request to reopen claim, received in June 2003 and asserting injury at Fort Knox in 1974; and, (4) the appellant's testimony before the Board in July 2009 that he injured his left great toe by stumbling over a rock while undergoing training at Fort Knox. Review of the evidence received since May 2002 shows nothing therein to be material to reopening of the claim for a left great toe injury. The new medical evidence continues to show no diagnosed residuals of a previous injury to the left great toe. In regard to an injury during service, the appellant's lay account of an injury at Fort Knox is essentially duplicative and redundant of his account as previously considered by the RO prior to May 2002 and is not "new." Thus, new and material evidence has not been received to reopen the claim. The Board concludes that new and material evidence to reopen the claim for service connection for a disorder of the left great toe has not been received, and the rating decision of May 2002 remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. Annoni, 5 Vet. App. 463, 467. New and material evidence: low back disorder The rating decision in November 1987 denied service connection for chronic lumbosacral strain because nothing on examination related the disorder to service. The appellant did not appeal or submit additional evidence within the appeal period. In November 2001 the appellant submitted a request to reopen his claim for service connection for a back condition. He did not submit any additional evidence in support of his claim, and reopening was denied in a rating decision in May 2002. The evidence of record in May 2002 relating to a low back disorder consisted of the following: (1) STRs including a medical examination report dated in June 1974 showing normal examination of the spine and other musculoskeletal; (2) claim for service connection for back injury submitted in November 1982 and asserting treatment in service at Camp Mabry, Texas in 1975; (3) VA X-ray in December 1982 showing a normal lumbar spine; (3) VA orthopedic note dated in February 1983 showing the appellant asserted having intermittent low back pain since injuring his back in 1974 at Camp Mabry, Texas, and also showing diagnosis of mild chronic lumbosacral strain with no objective findings; (4) claim for compensation and pension dated in June 1987 and asserting treatment in service in 1976 for a back injury; (5) VA X-ray in September 1987 showing a normal lumbar spine; and, (6) VA examination in September 1987 showing complaint of chronic low back pain. Evidence received since May 2002 relating to the claimed low back disorder consists of the following: (1) private medical treatment records showing the appellant had a work-related low back injury in August 1980 for which he claimed worker compensation; (2) private treatment note dated in December 1981 in which the appellant denied any problems with his back prior to the claimed workplace injury; (3) private treatment records showing normal X-ray of the lumbar spine in January 1997; (4) VA outpatient treatment report in June 2002 showing complaint of chronic back pain; (5) VA X-ray in June 2002 showing a normal lumbosacral spine; (6) request to reopen claim, received in June 2003 and asserting injury at Camp Mabry in 1976; (7) records from Brackenridge Hospital showing treatment for acute back and neck pain following a post-service motor vehicle accident (MVA) in March 2004; and, (8) VA ambulatory care treatment note in June 2004 showing complaint of low back pain since the March 2004 MVA. Review of the evidence received since May 2002 shows nothing therein to be material to reopening of the claim for a lumbosacral spine disorder. The new medical evidence shows the appellant continued to complain of subjective back pain but otherwise does not show any change in diagnosis or etiology of the previously-documented disorder. In regard to an injury at Camp Mabry during service, the appellant's lay account of such injury is essentially duplicative and redundant of his account as previously considered by the RO prior to May 2002 and is not "new." Thus, new and material evidence has not been received to reopen the claim. The Board concludes that new and material evidence to reopen the claim for service connection for a low back disorder has not been received, and the rating decision of May 2002 remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. Annoni, 5 Vet. App. 463, 467. New and material evidence: adjustment disorder or other acquired nervous disorder The rating decision in November 1987 denied service connection for "nervous condition due to anxiety" because nothing on examination related the disorder to service. In November 2001 the appellant submitted a request to reopen his claim for service connection for anxiety disorder. He did not submit any additional evidence in support of his claim, and reopening was denied in a rating decision in May 2002. The evidence of record in May 2002 relating to an adjustment disorder or other psychiatric disorder consisted of the following: (1) STRs including a medical examination report dated in June 1974 showing normal psychiatric evaluation; (2) correspondence from Dr. Carey Windler dated in October 1981 stating the appellant reported "trouble with his nerves" associated with a work-related left knee injury the previous year; and, (3) VA examination in September 1987 showing the appellant as having "nervous condition due to anxiety state." Evidence received since May 2002 relating to the claimed adjustment disorder consists of the following: (1) examination by Dr. George Robison in April 1987 noting the appellant to have rambling speech but no other evidence of a psychiatric disorder; (2) VA psychiatric assessment/evaluation in August 2003 showing diagnosis of adjustment disorder with depressed/irritable mood and alcohol dependence by history (Axis I) and also personality disorder with paranoid features (Axis II); (3) request to reopen claim, received in November 2003; (4) VA psychology consult in December 2007 stating the appellant was not experiencing mental health related distress; and, (5) the appellant's testimony before the Board in July 2009 to the effect that he was anxious during service about the possibility of being sent to Vietnam, interpersonal relationships and other worries. Review of the evidence received since May 2002 shows nothing therein to be material to reopening of the claim for an acquired nervous disorder. The new medical evidence shows documentation of substance abuse as a new psychiatric problem, but current substance abuse per se is not a diagnosis for which service connection can be considered. Otherwise, the new medical evidence of record shows the presence of a psychiatric diagnosis, which was an element of service connection that was present prior to May 2002, but there continues to be no medical evidence of an etiological relationship of such diagnosis to service. The appellant's lay testimony regarding stresses during service are considered credible insofar as he recounts in-service experiences, but nothing in his testimony shows a relationship between such experiences and a current psychiatric disorder. Thus, new and material evidence has not been received to reopen the claim. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for an acquired nervous disorder has not been received, and the rating decision of May 2002 remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to Service Connection Applicable Legal Principles Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A veteran who served during a period of war of after January 1, 1947, is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R. § 3.304. However, an individual who has only Reserve or National Guard service (ACDUTRA or INACDUTRA with no active duty) is not a veteran as legally defined; in the service connection context this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty do not apply where the only service performed is ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence and Analysis Service connection for a bilateral arm disorder STRs consist of a Report of Medical Examination in June 1974 in which the upper extremities are noted as normal on examination. The appellant had a VA examination, with orthopedic consult, in February 1983 that is silent in regard to any complaint relating to the arms, although the examiner noted scars from stab wounds to the left scapula and left shoulder. The appellant presented to the VA outpatient clinic in June 2002, at which time he was noted to have full range of motion over the upper arms, with no joint swelling or tenderness. The appellant testified before the Board in July 2009 that during service he strained his arms performing physical exercises, and that he was treated for such injury at Fort Knox. Review of the evidence of record does not show any post-service evidence of a disorder of the bilateral arms. In this regard, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, the first element of service connection - medical evidence of a current disability - is not met. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The appellant has not shown a bilateral arm disorder for which service connection can be considered, so the claim must be denied. The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, a veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds the appellant's lay testimony regarding having incurred a bilateral arm injury at Fort Knox, with inferred chronic residuals, is not credible. First, the appellant admitted to a VA psychiatrist in August 2003 that he had been imprisoned for a felony, which shows bad character. Second, the file shows the appellant has a history of exaggerating symptoms in hope of secondary gain from his worker compensation claim for back and knee injuries, asserting limitation of function that was disproved by clinical observation (see private treatment records dated in August 1981 and September 1987). Third, the appellant has a history of submitting inconsistent statements about his medical history, such as asserting to the worker compensation physician that he had no back or knee problems prior to the workplace injury but testified before the Board that he injured his back and knees in service. Similarly, in July 1984 the appellant reported to his Congressman that he had been offered $30,000.00 per year for life in settlement of his worker compensation claim, but this assertion was flatly denied in an August 1984 response to the Congressman by the Texas Industrial Accident Board. In summary, the appellant has shown a pattern of desire for secondary gain that makes his account of undocumented injuries in service, with inferred chronic but undocumented residuals after service, not credible. Further, his current account of chronic symptoms beginning in service and continuous symptoms after service is inconsistent with his voluminous VA treatment record, which is silent in regard to any post-service complaint of his currently-claimed symptoms. Lastly, the Board notes that while the Veteran and others as lay persons are competent to report on the claimant's observable symptoms, such as pain and limitation of motion because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of a chronic disability of the bilateral arms because such an opinion requires medical expertise which they do not have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The most competent and credible evidence of record does not show the Veteran being diagnosed with bilateral arm disorders at any time during the pendency of the appeal. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Service connection for a chronic disability manifested by chest pain STRs consist of a Report of Medical Examination in June 1974 (enlistment examination) in which the appellant denied a history of chest pain or shortness of breath and in which the heart, lungs and chest were noted to be normal on examination. The appellant had a VA examination in February 1983 in which he admitted smoking 2-3 packs per day. Respiratory examination was essentially normal and no cardiac abnormality was noted. The appellant had an examination by Dr. George Robison in April 1987 in which the heart and lungs were essentially normal. The appellant had a chest X-ray at Brackenridge Hospital in November 1990 showing the lungs to be clear and cardiac silhouette normal. Subsequent private chest X-rays in January 1997 and August 2000 were also normal. The appellant presented to the VA outpatient clinic in June 2002, at which time he admitted a smoking history of 52 packs/year and denied current chest pain or shortness of breath. The appellant testified before the Board in July 2009 that he had chest pain that could be due either to musculoskeletal injury during service in which he tore his rotator cuff or to a cardiovascular disorder. On review of the file, the appellant has complained of subjective chest pain, but the rating schedule does not provide a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In fact, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez, supra. The file shows no medical evidence of an underlying disorder manifested by pain for which service connection may be considered. Brammer, 3 Vet. App. 223, 225. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra In this case, the appellant himself is unable to assert that his claimed chest pains are due to an underlying cardiac disorder versus an underlying musculoskeletal disorder, and the Board accordingly finds him to be not competent to report a current disability. Kahana, id. The most competent and credible evidence of record does not show the Veteran being diagnosed with a chronic disability manifested by chest pain at any time during the pendency of the appeal. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Service connection for a bilateral hip disorder STRs consist of a Report of Medical Examination in June 1974 (enlistment examination) in which the appellant denied a history of joint pain and in which all musculoskeletal systems were noted to be normal on examination. Treatment records from Dr. Carey Windler show the appellant complained in April 1981 of left hip pain, which the appellant attributed to his workplace-related left knee injury. X-ray of the pelvis showed no abnormality of the hip joint. The appellant had a VA examination, with orthopedic consult, in February 1983 that is silent in regard to any complaint relating to the hips. X-ray of the pelvis and both hips by Austin Radiological Association in September 1985 was normal. The appellant testified before the Board in July 2009 that he injured his hips at Fort Knox in a fall; this was the same accident in which he injured his left great toe. Review of the evidence of record does not show any post-service evidence of a disorder of the bilateral hips. Moreover, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez, supra. Thus, the first element of service connection - medical evidence of a current disability - is not met. Brammer, 3 Vet. App. 223, 225. The Board has considered the lay evidence offered by the appellant, which essentially consists of his assertion of having injured his hips in service. As noted above, the Board has found the appellant to not be a credible historian, so his reported history of injury in service with chronic residuals after service is not accepted as evidence of a current disability related to service. Moreover, the Board notes that while the Veteran and others as lay persons are competent to report on the claimant's observable symptoms, such as pain and limitation of motion because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of a chronic disability of the bilateral hips because such an opinion requires medical expertise which they do not have. See Davidson, supra; Jandreau, supra. The most competent and credible evidence of record does not show the Veteran being diagnosed with hip disorders at any time during the pendency of the appeal. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Service connection for a right shoulder disorder STRs consist of a Report of Medical Examination in June 1974 (enlistment examination) in which the appellant denied a history of joint pain and in which the upper extremities were noted as normal on examination. The appellant had a VA examination, with orthopedic consult, in February 1983 that is silent in regard to any complaint relating to the right shoulder. The appellant had a physical examination by Dr. George Robison in which he complained of some tightness in the left shoulder. He denied history of shoulder injuries, and the report is silent in regard to complaints about the right shoulder. In his claim for service connection, received in June 2003, the appellant asserted he had injured in shoulders during Advanced Individual Training (AIT) in 1975. The appellant testified before the Board in July 2009 that during service he tore his rotator cuff. Review of the evidence of record does not show any post-service evidence of a disorder of the right shoulder. Moreover, the Court has said that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted. See Sanchez-Benitez, supra. Thus, the first element of service connection - medical evidence of a current disability - is not met. Brammer, 3 Vet. App. 223, 225. The Board has considered the lay evidence offered by the appellant, which essentially consists of his assertion of having injured rotator cuff in service. As noted above, the Board has found the appellant to not be a credible historian, so his reported history of injury in service with chronic residuals after service is not accepted as evidence of a current disability related to service. Moreover, the Board notes that while the Veteran and others as lay persons are competent to report on the claimant's observable symptoms, such as pain and limitation of motion because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of a chronic disability of the right shoulder because such an opinion requires medical expertise which they do not have. See Davidson, supra; Jandreau, supra. The most competent and credible evidence of record does not show the Veteran being diagnosed with a disability of the right shoulder at any time during the pendency of the appeal. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Entitlement to TDIU Applicable Legal Principles It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Evidence and Analysis The appellant has no service-connected disabilities. Accordingly, the threshold criteria for consideration of a TDIU, to include on an extraschedular basis, are not met as a matter of law. See Sabonis v Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). There is no doubt to be resolved, and the claim is denied. ORDER New and material evidence having not been received, the request to reopen the claim for service connection for a bilateral knee disorder is denied. New and material evidence having not been received, the request to reopen the claim for service connection for a left great toe disorder is denied. New and material evidence having not been received, the request to reopen the claim for service connection for a low back disorder is denied. New and material evidence having not been received, the request to reopen the claim for service connection for an adjustment disorder or other acquired nervous disorder is denied. Entitlement to service connection for a bilateral arm disorder is denied. Entitlement to service connection for a chronic disability manifested by chest pain is denied. Entitlement to service connection for a bilateral hip disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs