Citation Nr: 1308092 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-30 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for sterility. 2. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for Hepatitis C. 5. Entitlement to service connection for a back disorder. 6. Entitlement to service connection for anemia, including due to service-connected malaria and/or encephalitis. 7. Entitlement to service connection for a seizure disorder, also including due to the service-connected malaria and/or encephalitis. 8. Entitlement to service connection for sinusitis. 9. Entitlement to service connection for a pulmonary disorder, claimed as bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active military service from January 1969 to July 1972, including in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Board remanded the claims so the Veteran could have a hearing, as he had requested. He had this hearing at the RO in October 2012 before the undersigned Veterans Law Judge (Travel Board hearing). The Veteran's claim of entitlement to service connection for PTSD was adjudicated in the September 2006 rating decision at issue in this appeal. But the evidence also shows he has been diagnosed with depressive disorder and dysthymic disorder in VA treatment notes contemporaneously dated in 2006. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Clemons Court found that, where a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Therefore, this claim has been accordingly recharacterized as more generally for an acquired psychiatric disorder so as to encompass all of the diagnoses that have been made. The claims of entitlement to service connection for Hepatitis C, a left knee disorder, a back disorder, a seizure disorder, sinusitis, and a pulmonary disorder require further development before being decided on appeal. So the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the remaining claims for sterility, anemia, and a seizure disorder. FINDINGS OF FACT 1. In an unappealed September 1978 rating decision, the RO denied the claim of entitlement to service connection for sterility. 2. The evidence since submitted, as concerning this claim, is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate this claim, or raise a reasonable possibility of substantiating this claim. 3. There is no probative (meaning competent and credible) medical or other evidence of record confirming the Veteran has anemia or a seizure disorder either currently or at any time since the filing of these claims. CONCLUSIONS OF LAW 1. The RO's September 1978 rating decision denying the Veteran's claim of entitlement to service connection for sterility is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2012). 2. New and material evidence has not been received since that decision to reopen this claim for service connection for sterility. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Anemia was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 4. A seizure disorder was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This notice must: (1) inform the Veteran of the information and evidence not of record that is necessary to substantiate his claim, (2) inform him of the information and evidence that VA will obtain, and (3) inform him of the information and evidence that he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). When a Veteran files a claim of entitlement to service connection, there are five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and his military service, (4) rating for the disability, and (5) effective date for the disability. So VCAA notice should concern all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence - evidence that is both new and material. 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. So, to this end, they must be: 1) notified of the evidence and information necessary to reopen the claim (i.e., instructed on what new and material evidence is); (2) apprised of the evidence and information necessary to substantiate each element of the underlying service-connection claim; and (3) notified of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ), which in this particular instance is the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, instead preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A VCAA notice letter was initially sent to the Veteran in January 2006, prior to initially adjudicating his claims in September 2006, so in the preferred sequence. That letter is compliant with the holding in Kent, supra, since it sufficiently explained the bases of the prior September 1978 denial of the claim for sterility (i.e., the deficiencies in the evidence when this claim was previously considered). That notice letter also informed him of the evidence required to substantiate his service connection claims for anemia and a seizure disorder and of his and VA's respective responsibilities in obtaining this supporting evidence. The claims were readjudicated by way of a June 2008 SSOC, which also discussed the downstream disability rating and effective date elements of the claims. VA therefore has satisfied its duty to notify the Veteran concerning his claims. VA also satisfied its duty to assist the Veteran with these three claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC obtained his service treatment records (STRs) and VA outpatient treatment records. Further, as indicated, he has been afforded an opportunity to testify at a personal hearing before the undersigned Veterans Law Judge. As well, the Veteran was provided a VA neurologic examination addressing his anemia and seizure disorder claims. A VA compensation examination was not provided, however, concerning his sterility claim because, despite the representative's contention (see May 2011 written argument), the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii) (2012). And as the Board will explain, since there is not this required new and material evidence, an examination is not required concerning this claim. Id. But having said that, in Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court clarified that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. Here, though, even when the RO previously considered and denied this claim in September 1978, there was no evidence of sterility in the service treatment records (STRs), nor was there any post-service evidence of this condition. And as will be discussed, the evidence added to the claims file since that prior final and binding decision denying this claim still does not establish the Veteran has sterility, much less as a result or consequence of his military service. The Board therefore is satisfied that VA has provided all assistance required by the VCAA concerning this claim. 38 U.S.C.A. § 5103A (West 2002). The Board has reviewed all of the relevant evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate these claims and what the evidence in the file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Claims for Anemia and a Seizure Disorder During service, the Veteran contracted cerebral malaria and secondary anemia. During his hospitalization, he also had a grand mal seizure. He is currently service connected for malaria and encephalitis. He now contends that he has anemia and a seizure disorder as a result of service or his service-connected malaria and/or encephalitis. Service connection may be granted if it is shown he suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during his service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When determining service connection, all potential theories of entitlement, direct, presumptive and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service occurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., tinnitus (ringing in the ears), a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (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, 1377 (Fed. Cir. 2007). So medical evidence is not always or categorically required when the determinative issue is diagnosis or etiology, rather, this may be established by competent and credible lay evidence if the type of condition claimed is readily amenable to probative comment regarding its diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The question of whether medical or lay evidence is required depends on the particular condition at issue, so is determined on a case-by-case basis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Having reviewed the complete record, the Board finds that service connection for anemia and a seizure disorder is not warranted because the Veteran has failed to establish he has these claimed conditions - either presently or at any time since the filing of these claims. He is only competent to comment on symptoms he may have personally experienced, not the cause of them, and, in particular, whether they are attributable to a particular diagnosis or an incident of his military service. Thus, he is competent to report shaking episodes, as they are readily observable. He would also be competent to report feeling sleepy but he does not report that type of symptom. In fact, he does not report any symptoms associated with his claimed anemia. At any rate, unlike, for example, a separated shoulder, broken arm, tinnitus (ringing in the ears), pes planus (flat feet), varicose veins, etc., determining whether a person has anemia or a seizure disorder, much less as a result of his or her military service, cannot be based on mere lay opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). As explained, the most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the conditions claimed. The Veteran has neither provided nor identified any competent and credible medical or lay evidence showing a current diagnosis of anemia or a seizure disorder, including at any point since the filing of these claims. There is no question that, during service, he contracted malaria, developed secondary anemia, and had one episode of a grand mal seizure. However, there is no further indication of those conditions while in service - either by subjective complaint or objective clinical finding. This includes when examined in March 1972 in anticipation of separating from service; that discharge examination failed to note any indication of anemia or a seizure disorder. That is to say, merely establishing he had anemia and a seizure episode while in service is not tantamount to granting service connection because there has to be consequent disability that exist still even today or, as mentioned, at the very least, which did at the time of the filing of these claims. See 38 C.F.R. § 3.303(b). And, here, there has been no additional diagnosis of anemia or a seizure disorder during the many years (indeed decades) since service, including since the filing of these claims, to in turn suggest he has a current resultant disability. According to a June 2006 medical report from Valley health Resources, an internal medicine evaluation was performed. The Veteran discussed with the examiner that he had had two to three seizure episodes since his discharge from service, the last one being about eight years prior, so in 1998 or thereabouts. No seizure disorder was diagnosed. He had a VA neurologic examination for compensation purposes in July 2006. The evaluating neurologist acknowledged the episode of anemia during service, noting the Veteran's hematocrit level did fall during service, but also pointing out that it returned to normal suggesting that anemia was present for only a short period and was corrected by the time of discharge from service. This VA examiner further clarified that anemia was not shown during his evaluation of the Veteran, as his hemoglobin and hematocrit levels were within normal limits. The July 2006 VA neurologist also noted that, after the Veteran's grand mal seizure episode in service, a lumbar puncture was carried out, and although high protein and high lymphocytes were found on the first "CSF," the second "CSF" returned to normal. Notably, the neurologist stated that the Veteran recovered with no residual neurological deficits present at the time. Additionally, the neurologist observed that the Veteran had not received any current treatment for a seizure disorder and no tests had been done to suggest that he has an established seizure disorder. The July 2006 VA neurologist indicated the Veteran's reported episodes of shaking appear to be an effect from alcohol withdrawal, rather than any incident in service, including the cerebral malaria or encephalitis. The July 2006 VA examiner's medical opinions are entitled to a lot of probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). This examination report is highly probative because the neurologist relied on sufficient facts and data and provided rationale for his opinion. His opinions also contain sound reasoning. The Board notes further that the medical records dated subsequent to the July 2006 VA examination report show the Veteran has received treatment on an outpatient basis for various medical complaints, but none mention or note any complaints concerning anemia, his hematocrit or hemoglobin levels, or an established seizure disorder. Therefore, the Veteran has failed to satisfy the most essential requirement for service connection, which as explained is first establishing he has current disability on account of the conditions claimed. Absent establishment of this required current disability, there necessarily is no disability to attribute to his military service so as to, in turn, warrant service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Accordingly, the Board finds that the preponderance of the evidence is against these claims for service connection for anemia and a seizure disorder. So there is no reasonable doubt to resolve in his favor, and these claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. New and Material Evidence Claim regarding the Sterility Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2012). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, else the decision becomes final and binding if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302 (2012). VA may reopen and review a claim if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final and binding denial of the claim is, in fact, new. As indicated by the applicable regulation, 38 C.F.R. § 3.156, and by case law, new evidence is that which was not of record at the time of the last final and binding disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it also is material. As already alluded to, the Court held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156(a) creates a low threshold to reopen, and emphasized that 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, 24 Vet. App. at 120-21. That is, it is not required the evidence in question be new, material, and raise a reasonable possibility of substantiating the claim; there are just two, not three requirements. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final and binding denial on any basis to determine whether a claim must be reopened, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the record shows the RO originally considered and denied the Veteran's service connection claim for sterility in a September 1978 rating decision. The RO denied the claim noting that there was no evidence of sterility, and in any event, the RO noted that sterility is highly unlikely that the malaria or encephalitis caused any sterility, especially since it was not shown in the evidence. The Veteran did not appeal that decision so that initial decision denying this claim for sterility is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In December 2005, he filed a statement which amounts to a petition to reopen this previously denied, unappealed, sterility claim. Therefore, the last final and binding denial pertinent to this claim now under consideration is the September 1978 RO decision. For purposes of the new-and-material analysis, the credibility of the evidence since submitted or otherwise obtained is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept as credible assertions that are beyond the competence of the person making them). The evidence previously of record included the Veteran's STRs reflecting that he had developed falciparum malaria in October 1970 during his active duty service. During his hospital stay, he also had had signs of diffuse frontal brain damage, which the evaluating neurologist believed was mostly likely viral encephalitis. The STRs show no complaints, treatment, or diagnoses of sterility, specifically. Likewise, at the time of the September 1978 RO decision, there was no then current medical evidence showing a diagnosis of sterility. In consideration of the additional evidence received since that final and binding September 1978 RO decision, the Board finds that the additional evidence is cumulative or redundant of evidence already considered in that earlier decision, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board has considered the Veteran's statements and hearing testimony in support of his claim. These statements, for the most part, are merely redundant and cumulative of his statements in his previous claim. He has, in the past, asserted that he is sterile as a result of his malaria and encephalitis. His new statements continue this contention but do not rise to the level of new and material evidence because they do not relate to an unestablished fact necessary to substantiate this claim and do not raise a reasonable possibility of substantiating this claim. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). And see, also, Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.). So, under these circumstances, the Board concludes that new and material evidence has not been received; hence, the requirements to reopen this claim of entitlement to service connection for sterility have not been met, and the appeal of this claim must be denied. As new and material evidence to reopen this finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The claim of entitlement to service connection for anemia is denied. The claim of entitlement to service connection for a seizure disorder is denied. New and material evidence not having been received, the petition to reopen the claim for service connection for sterility is denied. REMAND Further development is necessary prior to deciding the remaining claims. Hepatitis C The Veteran currently tests positive for the hepatitis C virus (HCV). In this regard, the results of laboratory testing in January 200 show positive findings for the HCV, and this diagnosis is confirmed in more recent medical evaluation and treatment records. Thus, the Veteran has this claimed condition. Consequently, the determinative issue instead is whether it is attributable to his military service or dates back to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The risk factors for HCV include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) (November 30, 1998). Veterans also may have been exposed to HCV during the course of their duties as a military corpsman, medical worker, or as a consequence of being a combat Veteran. See VBA Fast Letter 04-13 (June 29, 2004). Service connection may not be granted for disability that is the result of a Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301. The VA treatment records showing a diagnosis of HCV indicate that it was contracted through IV drug abuse. However, the Veteran contends that he developed HCV during his in-service hospitalization for malaria and encephalitis. Notably, an October 1971 STR shows a notation marked in red that the Veteran complained of being exposed to hepatitis. In light of the evidence of a current disability and the Veteran's contention that he contracted HCV while hospitalized during his military service, the Board is obtaining a medical nexus opinion on this determinative issue of causation. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006), citing 38 U.S.C.A. § 5103A (d)(2) and 38 C.F.R. § 3.159(c)(4). Left Knee, Feet, and Back The Board is also remanding the left knee, bilateral foot, and back claims for a VA examination to determine the nature and etiology of any currently shown disability. During his 2012 Board hearing, the Veteran stated that he first injured his left knee while serving in the Republic of Vietnam. He remembered that while under ambush, he was running and accidentally twisted his left knee in a hole. He stated that he told the medic, but treatment was not provided. Nonetheless, a review of an October 1971 STR reveals the Veteran's report of having pulled his leg muscles while playing football, and physical examination revealed ecchymosis behind both knees. Additionally, on his March 1972 Report of Medical History, completed in anticipation of service separation, the Veteran indicated that he had or had had cramps in his legs, and swollen or painful joints. Post-service, the Veteran's VA treatment records show current complaints of, and treatment for, left knee pain and "giving out". See VA treatment notes dated in May 2006 and July 2007. He reiterated his contention that he has current left knee pain during his personal hearing. The Veteran, as a layman, is competent to report these observable knee symptoms. Concerning the bilateral foot claim, the Veteran testified that he injured his feet at the same time he fell in the hole during service. As indicated, he reported that he did not receive any medical treatment after the fall, but the Board observes that a December 1969 STR shows that he reported foot trouble which resulted in a prescription for arch supports. Additionally, on his March 1972 Report of Medical History, he indicated that he had or had had foot trouble. There is also evidence of post-service foot complaints and treatment. In this regard, in June 2003, he was assessed with left foot pain, rule-out bone spur. Additionally, in August 2005, he presented to a VA emergency room due to hyperextension of his left foot. X-rays showed evidence of diffuse swelling across the dorsum and exquisite tenderness over the 4th and 5th metatarsals at the base; diagnostic impression was fracture of the 5th metatarsal. Additionally, during his 2012 personal hearing, he competently testified that he currently experiences bilateral foot pain on a daily basis. Concerning the Veteran's back claim, the Veteran asserts that he incurred disability as a result of carrying an M60 machine gun on his side while serving in Vietnam. His STRs show treatment for muscle spasms, and on his March 1972 Report of Medical History, he also reported having had recurrent back pain. Moreover, the Board observes that according to his military occupational specialty (MOS) was a light weapons infantryman. Moreover, he competently reported during his 2012 hearing that he currently experiences daily back pain. The Veteran has yet to undergo a VA compensation examination in connection with his left knee, back, and bilateral foot claims. In light of the above, this should be afforded to him. Sinus and Pulmonary Disorders The Veteran also seeks service connection for a sinus disorder, as well as a pulmonary disorder, claimed as bronchitis. During service, in February 1971, he sought treatment for chronic sinus congestion, and a sinus series showed a soft tissue mass in the superoaspect of the left maxillary sinus; no bony abnormality was appreciated. During a March 1971 follow-up visit a cyst in the left maxillary sinus was noted, as well as allergic rhinitis. In May 1971, the Veteran went to the emergency clinic with inflamed tonsils and wheezing; impression was tonsillitis and bronchitis. Additionally, during a May 1971 ENT consultation, the examiner noted that the sinus cyst had disappeared, but a deviated septum to the left was seen. On a March 1972 Report of Medical History, completed in anticipation of service separation, the Veteran indicated that he had or had had sinusitis and a chronic cough, in pertinent part. Post-service, according to a June 2003 VA treatment note, an impression of allergic rhinitis is shown. Concerning the pulmonary claim, the Veteran's current VA outpatient treatment notes show a history of chronic obstructive pulmonary disorder. In light of the above, the Board is remanding the sinus and pulmonary claims for a VA compensation to determine the nature and etiology of any current pertinent disability. He has not yet undergone VA compensation examinations in connection with these claims. Psychiatric Disability, including PTSD As already alluded to, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD, in particular, requires: [1] a current medical diagnosis of this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the DSM-IV) (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Several VA treatment notes confirm the Veteran has received a diagnosis of PTSD. The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV criteria; VA adjudicators must effectively presume the diagnosis of PTSD was in accordance with the DSM-IV, both insofar as the sufficiency and adequacy of the claimed stressors that predicated this diagnosis. See Cohen, 10 Vet. App. 140 -41. Therefore, the Veteran has met this preliminary requirement of at least establishing he has this claimed condition. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) and Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim). Consequently, resolution of this claim turns instead on whether this PTSD diagnosis is attributable to the events he says occurred during his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In February 2005, the Veteran was referred to a VA Mental Health for an initial intake evaluation. He reported that while serving in Vietnam he witnessed people in a small village beating up an old man. He also reported being ambushed by North Vietnamese and during the fight, his M60 "cooked off," becoming so hot that it would not stop firing. He was afraid that, for a brief interval, he seemed to be outside of his body, watching himself holding the M60. On another occasion, when his unit was outnumbered in a firefight with enemy forces, he ran for his life. He also witnessed enemy prisoners being tortured by Americans, which horrified him. The psychologist diagnosed the Veteran with chronic PTSD with depressive features; alcohol abuse, and rule out alcohol dependence. During his October 2012 Board hearing, the Veteran attributed his PTSD to multiple combat traumas in Vietnam. The Veteran's service personnel records confirm that he had service in the Republic of Vietnam in 1970. There is no record however of his ever being in a combat zone, nor is there any record of his being awarded any decorations or commendations that would indicate his participation in combat. See VAOPGCPREC 12-99 (October 18, 1999). His service treatment records (STRs) also do not mention any such diagnosis or treatment of a psychiatric disorder, or concerning a psychiatric disorder of any sort for that matter. However, on his March 1972 Report of Medical History, completed in anticipation of service separation, the Veteran indicated that he had or had had nervous trouble of any sort. His alleged stressors were not independently verified and, alternatively, it was not established that he had engaged in combat against enemy forces such that this objective verification was not required to support his PTSD diagnosis. See 38 C.F.R. § 3.304(f)(2)(formerly (f)(1)); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). This determination was based on a review of his military personnel records, including his DD Form 214, which did not show he was awarded any decorations or commendations commonly associated with valor or heroism while engaged in combat with an enemy force. It was noted that he had received service awards, and although very commendable in their own right, they are not per se or prima facie indications that he was ever in a combat zone or engaged in combat against an enemy force. His service medals do not rise to the level of specifically corroborating combat service in Vietnam. Also, none of his other service personnel records indicates he was ever sent to a combat zone, as he alleges. And the record does not contain buddy statements from other servicemen who might be able to corroborate the details of his alleged stressors. Therefore, since his official service personnel records do not indicate he received any medals, badges, wounds, or decorations specifically denoting combat against enemy forces (see VAOPGCPREC 12-99 (October 18, 1999)), credible evidence is needed to verify his alleged stressors. 38 C.F.R. § 3.304(f)(2); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). New regulations regarding PTSD found at 38 C.F.R. § 3.304(f)(3), however, which took effect as of July 13, 2010, so during the pendency of this appeal, state that if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (July 13, 2010). But, significantly, this most recent regulation amendment has no impact on PTSD stressors claimed, as here, to have been experienced during combat, or while interned as a prisoner of war (POW), or the result of personal or sexual assault since there already are special provisions, exceptions, etc., for these other type claims. See 38 C.F.R. § 3.304(f)(2), (f)(4), and (f)(5). A claimed stressor need not be corroborated in every detail, however. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The mere fact that a Veteran was stationed with a unit that was present while enemy attacks occurred strongly suggests that he was, in fact, exposed to those attacks. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time the Veteran was stationed at the base). In other words, a Veteran's presence with the unit at the time those attacks occurred corroborates his statement that he experienced those attacks personally. In a January 2006 VCAA letter, the Veteran was asked to describe the stressful events in service, but he failed to respond to that letter. Thereafter, in May 2006, the RO issued a memorandum, finding that it did not have enough information of claimed stressors to allow for a meaningful search. However, the Veteran did describe some of his stressors during the VA mental health evaluations in 2005, as well as during his October 2012 Travel Board hearing. Also diagnosed since service are a depressive disorder and dysthymic disorder. The Board therefore finds that further efforts should be made to corroborate the Veteran's stressors, and a VA compensation examination and medical nexus opinion are needed to assist in determining whether the Veteran has a chronic acquired psychiatric disability, to include PTSD, as a consequence of military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A (d)(2); and 38 C.F.R. § 3.159(c)(4). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA, and with his consent obtain any available records from any identified private healthcare providers that have treated his claimed disabilities at issue in this appeal. Since these records are not in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1). The Veteran must be appropriately notified if unable to obtain these additional records. 38 C.F.R. § 3.159 (e). 2. Also ensure that any outstanding VA medical records are associated with the claims file. If additional records exist, which are relevant, then obtain them. And since they are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many attempts to obtain them as are required of this VA regulation. Also appropriately notify the Veteran if unable to obtain them. 38 C.F.R. § 3.159(e)(1). 3. Send the Veteran an additional VCAA letter. Ask that he identify with greater detail and specificity the risk factors in service that he believes led to his eventual HCV infection; also have him submit an additional statement containing more detail and information regarding his alleged stressors that he believes caused PTSD. And for all that he provides the required level of information, attempt to verify them through all appropriate means, including but not limited to by contacting the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly known as the Center for Unit Records Research (CURR)). 4. Thereafter, schedule a VA orthopedic compensation examination to determine the nature and etiology of his claimed left knee, back, and bilateral foot disabilities. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history of these disabilities. All necessary diagnostic testing and evaluation should be performed. The VA examiner is asked to address the following: a. Diagnose and describe all left knee, back, and bilateral foot disabilities found to be present; b. Determine the likelihood (very likely, as likely as not, or unlikely) any current left knee and/or bilateral foot disability is related or attributable to his military service, including his noted complaints of muscle spasms behind the knees in his STRs; and c. Determine the likelihood (very likely, as likely as not, or unlikely) any current back disability is related or attributable to his military service, including his reported carrying of an M-60 on his side. Reconcile any opinions with the Veteran's competent report of continuing left knee, back, and foot symptoms since service. In providing these opinions, it is essential the examiner discuss the underlying medical rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 5. After giving him time to respond and developing any evidence or information he cites as a possible source of his HCV infection, forward the claims file to a VA compensation examiner that is qualified to comment on the source or cause of the Veteran's HCV infection. In particular, this designee should review the claims file, including a complete copy of this remand, and provide a medical nexus opinion concerning the etiology of this HCV infection - in terms of the likelihood (very likely, as likely as not, or unlikely) it is the result of events in service. Reconcile the opinion with the Veteran's contention that he contracted HCV while hospitalized during service for malaria. The examiner must discuss the medical rationale underlying the opinion, if necessary citing to specific evidence in the file. 6. Next, schedule an appropriate VA compensation examination to determine the etiology of all current psychiatric disorders, to include PTSD. The claims file, including a complete copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent history of these disabilities. All necessary diagnostic testing and evaluation should be performed. Following a review of the claims file and a mental status examination, the examiner must diagnose all psychiatric disabilities found to be present; and specifically indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's psychiatric disabilities are related to his military service or date back to his service. The term "as likely as not", i.e., at least 50 percent probability, does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Also, if it is determined the Veteran is a combat Veteran to warrant consideration of his claim for PTSD under 38 C.F.R. § 3.304(f)(2), or he adds stressors that would fall within the purview of the revised subpart (f)(3), or if any stressor is independently confirmed by the JSRRC, inform the VA examiner of these stressor(s) and request a nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the PTSD is a result or consequence of a verified stressor. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 7. Then readjudicate these remaining claims in light of all additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs