Citation Nr: 1315549 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 06-35 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of head injury, to include memory loss. 3. Whether new and material evidence was received to reopen service connection for a left shoulder disability. 4. Whether new and material evidence was received to reopen service connection for a nerve disability. 5. Whether new and material evidence was received to reopen service connection for a bilateral knee disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to March 1980. Thereafter, he had periods of active duty for training (ADT) and inactive duty for training in the Army National Guard from March 1980 to July 1997. This case is before the Board of Veterans' Appeals (Board) on appeal of October 2005 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was before the Board in December 2009 and November 2012 when it was remanded for additional development. In February 2013 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence (including duplicate copies of service treatment records (STRs), service personnel records and private treatment records) with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are duplicative of the evidence in the paper claims file. The record reflects that the RO initially characterized the Veteran's psychiatric claim as a claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. Here, the Veteran has been diagnosed with schizophrenia; his psychiatric claim has been recharacterized accordingly. The Board notes that while the Veteran most recently was represented by the American Legion, in March 2012, before certification of the appeal to the Board, the American Legion revoked its power of attorney. The Veteran was informed of his right to appoint another representative at the February 2013 Board hearing. As the Veteran has not obtained another representative, the Board now recognizes the Veteran as proceeding pro se in this appeal. FINDINGS OF FACT 1. PTSD has not been present at any time during the pendency of this claim; an acquired psychiatric disability was not present in service, no psychosis was present until more than one year after the Veteran's discharge from his period of active duty; and no currently present acquired psychiatric disability is etiologically related to service. 2. The Veteran is not shown to have residuals of a head injury; no currently present memory loss is etiologically related to a head injury. 3. Unappealed June 2000 and February 2004 rating decisions denied the Veteran's claim of entitlement to service connection for a left shoulder disability. 4. Evidence received subsequent to the February 2004 rating decision pertaining to a left shoulder disability does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of service connection. 5. Unappealed January 2004 and February 2004 rating decisions denied the Veteran's claims of entitlement to service connection for a nerve disability and a bilateral knee disability. 6. Evidence received subsequent to the February 2004 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claims of entitlement to service connection for a nerve disability and entitlement to service connection for a bilateral knee disability. CONCLUSIONS OF LAW 1. A psychiatric disability, to include PTSD, was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. Residuals of a head injury, to include memory loss, were not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The June 2000 and February 2004 rating decisions which denied the Veteran's claim of entitlement to service connection for a left shoulder disability are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. Evidence received since the June 2004 rating decision is not new and material, and the Veteran's claim of entitlement to service connection for a left shoulder disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. The January 2004 and February 2004 rating decisions which denied the Veteran's claim of entitlement to service connection for a nerve disability and bilateral knee disability are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 6. Evidence received since the February 2004 rating decision is not new and material, and the Veteran's claims of entitlement to service connection for a nerve disability and a bilateral knee disability are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claims for service connection, the record reflects that the Veteran was mailed letters in June 2005, April 2009 and January 2010 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claims. The Veteran was provided complete notice prior to the adjudication of the claim seeking service connection for residuals of a head injury to include memory loss. Although the Veteran was not provided complete notice for the claim seeking service connection for a psychiatric disability until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See April 2012 Supplemental Statement of the Case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Regarding the claims to reopen, by correspondence dated in April 2009 the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the Veteran to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. Notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits was included as well. Dingess/Hartman, supra. The April 2009 VCAA letter contained the information required by Kent v. Nicholson, 20 Vet. App. 1 (2006), regarding reopening new and material claims. That letter also explained to the Veteran the evidence needed to reopen the claims. Complete VCAA notice was completed prior to the initial AOJ adjudication of the claims. Pelegrini, supra. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claims. In this regard, the Board notes that all available STRs, service personnel records, post-service treatment records and Social Security Administration records were obtained. [In this regard, multiple searches for additional STRs were unsuccessful. However, the Board points out that there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as this, in which records are presumed to have been lost or destroyed while the file was in the possession of the government. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); see also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with this duty in mind.] Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Board also finds that no additional development for medical opinions or examinations is necessary. Specifically, there is no medical evidence of a diagnosis of residuals of a head injury. Moreover, there is no medical evidence suggesting that the claimed psychiatric disability was present until many years after the Veteran's military service or suggesting that the claimed disability is etiologically related to service. Moreover, as discussed in detail below, there is no lay evidence of record credibly establishing a continuity of symptomatology. The Board recognizes that the threshold for whether a present disability may be related to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, under the circumstances of this case, the low threshold has not been met. The Board acknowledges that the Veteran has not been provided a VA examination in response to his claims to reopen and that no VA medical opinion has been obtained in response to these claims, but notes that VA has no obligation to provide such an examination or obtain such an opinion if new and material evidence has not been presented. See 38 C.F.R. § 3.159 (c)(4). Finally, the Board notes that the Veteran testified at a videoconference hearing in February 2013. Evidentiary development is complete. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. II. Claims of Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. See 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Active military, naval, or air service also includes any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Inactive duty training means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection for PTSD requires a medical diagnosis of the disorder, credible supporting evidence that the claimed in- service stressor actually occurred, and a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" or was a POW as established by official records, including recognized military combat citations or other supportive evidence. If the VA determines that the veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, the VA determines that the veteran did not engage in combat with the enemy or was a POW, or that the veteran engaged in combat with the enemy or was a POW, but the alleged stressor is not combat or POW related, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads: (f)(3) If a stressor claimed by a veteran is related to the veteran's 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, the veteran's 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. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Psychiatric Disability, to Include PTSD The Veteran has claimed that he currently has a psychiatric disability related to his military service. Although he maintains that he "fought in Panama" in 1989, his service personnel records do not confirm any combat service. The Veteran's service personnel records show that he was on active duty from August 1979 to March 1980. A review of the Veteran's STRs shows no complaints or findings related to a psychiatric disability for this period. The Veteran subsequently had numerous periods of ADT from 1987 to 1993, to include from March 13, 1993, to March 27, 1993. A review of the Veteran's STRs shows no complaints or findings related to a psychiatric disability for this period. Private treatment records note that the Veteran was hospitalized from January 1994 to April 1994 for a psychiatric evaluation. His parents had him committed after an arrest in November 1993. The Veteran was very paranoid and had grandiose delusions. The diagnosis was schizophrenia. Subsequent STRs note no complaints or findings related to a psychiatric disability. A review of the post-service medical evidence shows that the Veteran continued to be seen for paranoid schizophrenia. See private treatment records dated from 1997 to 2002. The Veteran submitted the instant claim of service connection in May 2005. He testified in February 2013 that he had both PTSD and schizophrenia related to his military service. Upon review of the evidence, the Board notes that PTSD was not diagnosed in service or thereafter. Therefore, the Board finds that the Veteran's claim seeking service connection for PTSD must be denied. See Brammer, supra. Moreover, although the Veteran has a current diagnosis of schizophrenia, the record does not contain any medical evidence that the Veteran's schizophrenia was manifested in service. The first diagnosis was in January 1994, after the Veteran's period of active duty and periods of ADT. The record does not contain any medical evidence that the Veteran's schizophrenia was manifested to a compensable degree within one year of a period of 90 days or more of active service. In this regard, the Veteran had only one such period of service, from August 1979 to March 1980. There is no post-service medical evidence of schizophrenia until January 1994, nearly 14 years after the Veteran's discharge. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The evidence of record does not include any medical opinion that a current diagnosis of psychiatric disability is (or might be) related to the Veteran's service, and does not suggest that a current diagnosis of psychiatric disability might be related to his service. The Veteran's believes that his psychiatric disability is related to his military service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Here, however, medical expertise is required to answer the question of whether the Veteran's current psychiatric disability is related to his active service. The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. The Board has considered the benefit of the doubt doctrine; as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply. B. Residuals of a Head Injury, to include Memory Loss The Veteran has claimed that he was hit on the head with a pipe in 1979 or 1980, and sustained a concussion that has resulted in memory loss. The Veteran's STRs are negative for complaints or findings of a head injury or memory loss. Following a period of active duty that ended in March 1980, the Veteran went on to serve in the Army National Guard from 1980 to 1997 with no complaints or findings of residuals of a head injury or memory loss. Following service, private treatment records note no complaints or findings of residuals of a head injury. Complaints of memory loss were attributed to the Veteran's nonservice-connected schizophrenia. See, e.g., September 1994 and July 1998 private treatment records. Upon review of the evidence, the Board notes no head injury or residuals thereof (including memory loss attributable to a head injury) was ever diagnosed in service or thereafter. While the Veteran has exhibited some memory loss, this has been attributed to his nonservice-connected schizophrenia, not a head injury. The evidence of record does not include any medical opinion that a current diagnosis of residuals of a head injury (to include memory loss) are (or might be) related to the Veteran's service, and does not suggest that a current diagnosis of a residuals of a head injury (to include memory loss) might be related to his service. In the absence of adequate evidence establishing a nexus between a current diagnosis of residuals of a head injury (to include memory loss) and the Veteran's service, the Board finds that the Veteran's claims seeking service connection must be denied. See Brammer, supra. The Veteran believes that he currently has residuals of a head injury (to include memory loss) caused by an injury sustain during his active service. In this regard, the Board acknowledges Jandreau, supra, in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address the existence of a current disability related to service in the present case. III. Claims to Reopen Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court 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 v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Left Shoulder Disability The Veteran originally filed his claim of entitlement to service connection for a left shoulder disability in September 1999. In a June 2000 rating decision, the Veteran was denied entitlement to service connection for a left or right shoulder disability; the RO stated (in pertinent part) that STRs were negative for findings of a left shoulder disability. The Veteran did not appeal this decision. In 2003 the Veteran submitted a new claim. In a February 2004 rating decision, the RO declined to reopen the Veteran's claim seeking service connection for a left shoulder disability. The Veteran did not appeal this decision. The evidence of record at the time of the February 2004 rating decision included the Veteran's STRs which show treatment for a right shoulder injury but do not show that any left shoulder was diagnosed during service. Post-service medical records show that the Veteran saw a private chiropractor in March 1995 and December 1996 for various complaints including left arm pain which was attributed to a cervical spine disability. A December 1999 statement from Dr. P notes the Veteran's current complaints of left shoulder pain secondary to an injury in service. Regarding the instant claim to reopen, evidence received subsequent to the February 2004 rating decision includes the Veteran's STRs, private treatment records dated from 1995 to 2009, and an August 2009 VA examination report. This medical evidence is either duplicative of the evidence previously considered or pertains to disabilities not herein at issue. None of the medical evidence shows that the Veteran has a current left shoulder disability related to his military service. Also of record is the Veteran's February 2013 hearing testimony, wherein the Veteran essentially stated that he has a left shoulder disability that was incurred in service. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board notes, however, that the Veteran's assertions and statements concerning his alleged left shoulder disability were recorded during the prior denials. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in February 2004 is not new and material, and reopening of service connection for a left shoulder disability is not warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. Gilbert, supra. B. Nerve Disability Here, January and February 2004 rating decisions denied service connection for a nerve disability. The RO essentially concluded that the Veteran's STRs were negative for any diagnosis related to nerve damage. The Veteran did not appeal these decisions. At the time of the February 2004 rating decision, the record included STRs, which note no complaints or findings related to nerve damage or a nerve disability. The record also included private treatment records dated from 1997 to 2004 which are negative for findings of a nerve disability related to the Veteran's military service. Regarding the instant claim to reopen, evidence received subsequent to the February 2004 rating decision include the Veteran's STRs, private treatment records dated from 1995 to 2009, and an August 2009 VA examination report. This medical evidence is either duplicative of the evidence previously considered or pertains to disabilities not herein at issue. None of the medical evidence shows that the Veteran has a current nerve disability related to his military service. Therefore, the additional medical evidence submitted is not material. Also of record is the Veteran's February 2013 hearing testimony, wherein the Veteran essentially stated that he has a nerve disability affecting the left side of his body that was incurred in service. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge. Barr, supra; Washington, supra. The Board notes, however, that the Veteran's assertions and statements concerning his alleged nerve disability were recorded during the prior denials. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in February 2004 is not new and material, and reopening of service connection for a nerve disability is not warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. Gilbert, supra. As the preponderance of the evidence is against the claim, the appeal is denied. C. Bilateral Knee Disability Here, January and February 2004 rating decisions denied service connection for a bilateral knee disability. The RO essentially concluded that the Veteran's STRs were negative for any diagnosis related to a knee disability. The Veteran did not appeal these decisions. At the time of the February 2004 rating decision, the record included STRs, which note no complaints or findings related to a knee disability. The record also included private treatment records dated from 1997 to 2004 which are negative for objective findings of a knee disability related to the Veteran's military service. May 2000 X-ray studies of the left knee were within normal limits. Regarding the instant claim to reopen, evidence received subsequent to the February 2004 rating decision include the Veteran's STRs, private treatment records dated from 1995 to 2009, and an August 2009 VA examination report. This medical evidence is either duplicative of the evidence previously considered or pertains to disabilities not herein at issue. None of the medical evidence shows that the Veteran has a current knee disability related to his military service. Therefore, the additional medical evidence submitted is not material. Also of record is the Veteran's February 2013 hearing testimony, wherein the Veteran essentially stated that he has a bilateral knee disability that was incurred in service. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge. Barr, supra; Washington, supra. The Board notes, however, that the Veteran's assertions and statements concerning his alleged knee disability were recorded during the prior denials. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in February 2004 is not new and material, and reopening of service connection for a bilateral knee disability is not warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. Gilbert, supra. As the preponderance of the evidence is against the claim, the appeal is denied. ORDER Service connection for a psychiatric disability, to include PTSD, is denied. Service connection for residuals of head injury, to include memory loss, is denied. New and material evidence was not received and, therefore, the request to reopen the claim of entitlement to service connection for a left shoulder disability is denied. New and material evidence was not received and, therefore, the request to reopen the claim of entitlement to service connection for a nerve disability is denied. New and material evidence was not received and, therefore, the request to reopen the claim of entitlement to service connection for a bilateral knee disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs