Citation Nr: 1323077 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-40 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a head injury with severe concussion. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), memory loss, depression, tension, and anger problems. 3. Entitlement to service connection for an eye disorder, claimed as a residual of a head/brain injury. 4. Entitlement to service connection for headaches, claimed as a residual of a head/brain injury. 5. Entitlement to service connection for drug and alcohol abuse. 6. Entitlement to service connection for a left leg disorder, to include chronic meralgia paresthesia of the left leg/thigh. 7. Entitlement to service connection for a neck disorder, to include chronic muscular strain of the cervical spine. 8. Entitlement to service connection for a left arm disorder, to include chronic muscular strain and chronic rotator cuff impingement tendonitis of the left arm. 9. Entitlement to service connection for a low back disorder, to include chronic muscular strain, superimposed on degenerative instability of lumbar spine. 10. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from May 1975 to September 1975 and July 1979 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. As will be discussed herein, a final September 1988 rating decision denied service connection for a head injury with a severe concussion and a psychiatric disorder. In December 2006, the Veteran filed his current claims, which included a petition to reopen his claim of entitlement to service connection for a head injury as well as a claim of entitlement to service connection for PTSD. The September 2007 rating decision originally denied reopening the Veteran's claim of entitlement to service connection for a head and brain injury with memory loss. Such rating decision also characterized the Veteran's claim for a psychiatric disorder as entitlement to service connection for PTSD, also claimed as depression, stress, tension, and anger problems, and adjudicated such on a de novo basis without reference to the prior September 1988 rating decision. In the September 2009 statement of the case, the RO recharacterized the issues on appeal and separated out the Veteran's PTSD by characterizing such as a psychiatric disorder to include PTSD, from his depression, tension, and anger problems, and included such latter disorders as residuals of the head and brain injury with memory loss and treated them as part of the petition to reopen the previously denied claim. However, after a careful review of the record, the Board has recharacterized the issues as listed on the title page. In this regard, the Veteran's PTSD, memory loss, depression, tension, and anger problems are more appropriately construed as psychiatric disorders rather than a cognitive disorder associated with a severe concussion (which was the basis for the September 1988 denial). Therefore, such claims have been recharacterized as shown on the first page of this decision. In addition, the Board notes that, while the December 2006 rating decision and the September 2009 statement of the case did not characterize the Veteran's claim of entitlement to service connection for a psychiatric disorder as a petition to reopen, the September 1988 rating decision specifically denied service connection for a chronic acquired neuropsychiatric disorder, mixed personality disorder, and adjustment disorder. As the Veteran's current claim for service connection for a psychiatric disorder, variously claimed, involves the same factual basis as the claims adjudicated in the September 1988 rating decision, such is more appropriately viewed as an application to reopen a previously denied claim and has been characterized as such on the first page of this decision. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b , the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Conversely, with respect to the Veteran's claims for service connection for an eye disorder and headaches, which he has claimed as s result of his in-service head injury, such were not specifically considered in the adjudication of the Veteran's claim for service connection for a head injury in the September 1988 rating decision and, therefore, are more appropriately viewed as new claims and have been characterized as shown on the first page of this decision. Id. The Board notes that, in his April 2008 notice of disagreement, the Veteran requested a Board hearing before a Veterans Law Judge sitting in Washington, D.C. As the Veteran's appeal does not come before the Board until after the issuance of the statement of the case followed by the receipt of a timely substantive appeal, he was notified in an August 2009 letter that he had instead been scheduled for a hearing before a Decision Review Officer (DRO) at the RO in September 2009. However, he failed to appear for his scheduled DRO hearing. Moreover, in his October 2009 substantive appeal (VA Form 9), the Veteran indicated that he did not want a Board hearing. Therefore, the Board finds that there are no outstanding hearing requests. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a psychiatric disorder and the issues of entitlement to service connection for left leg, neck, left arm, and back disorders and bilateral hearing loss are remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final decision issued in September 1988, the RO denied the Veteran's claim of entitlement to service connection for head injury with severe concussion. 2. Evidence added to the record since the final September 1988 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for head injury with severe concussion. 3. An eye disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. 4. Headaches are not shown to be causally or etiologically related to any disease, injury, or incident in service. 5. Service connection for primary drug and alcohol abuse is precluded as a matter of law and such are not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The September 1988 rating decision that denied the Veteran's claim of entitlement to service connection for head injury with severe concussion is final. 38 U.S.C. § 4005(c) (1982) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012)]. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for head injury with severe concussion. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for an eye disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2012). 4. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 5. The criteria for service connection for drug and alcohol abuse have not been met. 38 U.S.C.A. §§ 105(a), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Relevant to the Veteran's application to reopen his claim of entitlement to service connection for head injury with severe concussion, the Court has held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the instant case, a February 2007 letter, sent prior to the initial September 2007 rating decision, advised the Veteran that his claim for service connection for a head injury had been previously denied in a September 1988 rating decision on the basis that there was no evidence of residual disability due to an incident during military service. As such, he was informed that new and material evidence that related to such fact was necessary to reopen his claim. The February 2007 letter also provided him with the definition of new and material evidence, advised him of the evidence and information necessary to substantiate his underlying service connection claim, and VA's respective responsibilities in obtaining evidence and information. Additionally, such letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Pertinent to the service connection claims decided herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2007 letter, sent prior to the initial September 2007 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, private treatment records, and VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Relevant to the Veteran's application to reopen his claim for service connection for head injury with severe concussion, the Board notes that the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with his appeal. Even so, he was provided with a VA examination in July 2007, which, as explained in the next paragraph, is adequate to decide the claim. The Veteran was afforded VA examinations in July 2007 and August 2007 in order to adjudicate his claims regarding his claimed residuals of a head injury, an eye disorder, headaches, and drug and alcohol abuse. The Board finds that such VA examinations and accompanying opinions are adequate to decide the issues as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a full physical or mental examination. The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. In this regard, the Board observes that, with respect to the Veteran's headaches, the opinion obtained only addressed whether such are related to his in-service motor vehicle accident. However, his service treatment records reflect complaints of headaches on two occasions prior to the accident and the Veteran has alleged that his headaches began in service. The Board finds that a remand for a new examination or an addendum opinion is not necessary to decide the claim as the in-service complaints of headaches were made in connection with gastrointestinal illnesses and there is no indication that the Veteran complained of standalone headaches during service. Furthermore, while the Veteran reported at the July 2007 VA eye examination that his headaches date back to service, the Board, for the reasons discussed herein, finds such statement to be not credible. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that an additional VA examination and/or opinion with respect to this issue is not necessary to decide the claim. Additionally, pertaining to the Veteran's claim for drug and alcohol abuse, service connection for primary drug and alcohol abuse is precluded as a matter of law and he has not alleged that such are related to another disability. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the Veteran does not have a chronic disease enumerated at 38 C.F.R. § 3.309(a) and, therefore, presumptive service connection, to include based on continuity of symptomatology, is inapplicable. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters, supra. The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Application to Reopen a Claim for Service Connection for Head Injury with Severe Concussion In a September 1988 rating decision, the RO denied service connection for head injury with severe concussion. In reaching such decision, the RO considered the Veteran's service treatment records and private treatment records. The RO noted that the Veteran's service treatment records showed that he was hospitalized July 6 to 7, 1983, with a possible seizure and minor trauma due to a motor vehicle accident. It was observed that the Veteran suffered a blunt trauma, was stable, and returned to duty. A CT scan revealed no abnormalities. At the time of his release, the Veteran was not to drive or work heights for seven days. Post-service records were negative for any relevant evidence. Based on the foregoing, the RO determined that service connection for head injury with severe concussion was not warranted as there was no confirmation of significant injury or evidence of any residual disability due to the incident during military service. Rating actions 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). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In September 1988, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for a head injury was received until December 2006, when VA received his application to reopen his claim. Therefore, the September 1988 rating decision is final. 38 U.S.C. § 4005(c) (1982) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1988) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a head injury was received prior to the expiration of the appeal period stemming from the September 1988 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board notes that, since the September 1988 rating decision, service personnel records were received in February 2007 and April 2007. The provisions of 38 C.F.R. § 3.156(c)(1) provide that, at any time after VA issues a decision on a claim, if it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include service records that are related to a claimed in-service event. This regulation does not apply to records that VA could not have obtained when it first decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). The Board finds that 38 C.F.R. § 3.156(c) is inapplicable in the instant case because the newly received service personnel records do not pertain the Veteran's in-service head injury. Therefore, the claim is not reviewed on a de novo basis and new and material evidence is required to reopen such claim. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the September 1988 rating decision consists of VA treatment records, July 2007 and August 2007 VA examinations, and the Veteran's statements. The Board finds that such evidence is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for head injury with severe concussion. In this regard, the Board again notes that the Veteran's claim was previously denied on the basis that there was no confirmation of significant injury or evidence of any residual disability due to the incident during military service. The newly received likewise fails to demonstrate a significant in-service injury or residual disability due to such incident. Specifically, the VA treatment records are negative for any residuals of the Veteran's in-service head injury with severe concussion. Moreover, the July 2007 VA examiner noted that there was no history of physical findings to suggest significant head trauma at the time of the Veteran's motor vehicle accident. He further observed that the Veteran had a history of an apparently rather minor blunt head trauma secondary to a motor vehicle accident with a normal CT scan at the time and was returned to duty the following day. Furthermore, the August 2007 VA examiner found that the Veteran did not have brain damage persisting over time due to a motor vehicle accident on active duty. In reaching such conclusion, the examiner noted that the Veteran was found to be fit to return to duty after medical examination and CT scan. Moreover, he went on to successfully serve 18 months until his term expired and was eligible for reenlistment. The examiner noted that the effects of brain injury tend to be most obvious and impairing during the year following the injury and gradually improve. Furthermore, the Veteran's statements regarding the circumstances surrounding his in-service injury and current residuals of such are duplicative and thus redundant of the evidence at the time of the September 1988 rating decision. Therefore, the Board finds that the evidence received since the September 1988 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for head injury with severe concussion. Consequently, new and material evidence has not been received to reopen such claim and the Veteran's appeal must be denied. B. Service Connection for an Eye Disorder and Headaches The Veteran claims service connection for an eye disorder and headaches as he alleges that such are the result of his in-service head injury from his motor vehicle accident. The Veteran's service treatment records include a February 6, 1983, emergency room note from a German hospital. In this regard, the Board notes that, while the first page of the translated German hospital records states that the date of the accident was February 6, 1983, the rest of the evidence in the Veteran's service treatment records, including the CT scans from the German hospital, state that the in-service motor vehicle accident occurred on July 5, 1983. Such records indicate that the Veteran was driving an Army vehicle when he hit a bridge. He was initially unconscious and a neurological examination at the place of the accident was normal. On examination he was found to be responsive and fully oriented with no fractures on x-ray studies of the skull and of the cervical spine. He was diagnosed with a concussion of the brain and subdural hematoma of the right parietal. A July 1983 CT scan of the head revealed signs of sinusitis maxillaries both sides, a septum pellucidum cyst, and a subdural hematoma of the right parietal. It was noted that there was a normal CT scan of the head according to the Veteran's age and there were no signs of cerebral edema of intracranial bleeding or contusion or proof of fracture. A July 6, 1983 Medical Record Consultation Sheet to internal medicine stated that the Veteran was hospitalized after apparently having a seizure while driving and sustaining minor trauma in the resulting motor vehicle accident. His CT scan was normal by reports, but he needed further evaluation for seizures. July 6, 1983, nursing notes indicate that that the Veteran apparently had a seizure while driving and had minor head trauma that resulted from the motor vehicle accident. He had a right temporal parietal contusion with some complaints of a headache. He was alert and oriented but somewhat irritable. A few hours later he reported that he had a headache and there was no seizure activity. On a July 7, 1983, Inpatient Treatment Record Cover Sheet, it was noted that the Veteran was diagnosed with blunt head trauma secondary to a motor vehicle accident that occurred when he was a passenger of a truck that went under an overpass that was too low and the piece of wood that was holding the canvas hit the back of the Veteran's head. On a July 7, 1983, Abbreviated Medical Record, it was noted that the Veteran was transferred from a local hospital for observation following a motor vehicle accident. Another July 7, 1983, service treatment record stated that the Veteran had a probable head injury with a resolving right temporal hematoma. The plan was for the Veteran to be discharged. Eye Disorder The Veteran asserts that he has a eye disorder that is related to his military service, specifically, his in-service motor vehicle accident. His service treatment records are negative for any in-service complaints, treatment, or diagnosis referable to his eyes. A post-service December 1985 private psychiatric treatment record reflects that the Veteran wore glasses. In February 2007, the Veteran was seen for a VA optometry consult regarding reading glasses because his vision has decreased over the year. He also stated that his eyes rarely felt dry, itchy, or irritable. The Veteran's history was noted to be negative for any trauma. He was assessed with high myope with mild astigmatism, presbyope, trace nuclear cataracts, and occasional dry, itchy eyes per the Veteran. The Veteran was afforded a VA examination in July 2007 and he reported that he did not have any special injuries or accidents directly to his eye during service, but he was involved in a motor vehicle accident when the top of the truck he was riding in was sheared off. He reported that he was told he had a very serious concussion and that he might have problems. He was observed and then put back on duty. He did not recall any visual symptoms related to that incident, but stated that, during his military service, he developed some floaters. Since service his only visual problems have been continuing to wear glasses and from time to time he will have aches behind his eyes. The Veteran was diagnosed with myopia. The VA examiner stated that the Veteran has no eye or visual system problems caused by or a result of his head trauma. The rationale was that the Veteran's eye and visual systems are normal for his age. A December 2007 VA treatment note stated that the Veteran's eyes were normal. In regard to the diagnoses of myopia, astigmatism, and presbyopia, as noted in February 2007, the Board observes that service connection is not generally established for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c), 4.9. Refractive error of the eyes includes myopia, presbyopia, and astigmatism. Id.; VA Manual M21-MR1, Part III, Subpart IV, Chapter 4, Section B, Para. 10(d). Further, absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303(c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. In this regard, a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. Id. In the instant case, there is no evidence that the Veteran's myopia, astigmatism, and presbyopia were subject to a superimposed disease or injury during his military service, to include based on his in-service motor vehicle accident, that resulted in additional disability. In this regard, he reported at his July 2007 VA examiner that he did not have any special injuries or accidents directly to his eye during service. Furthermore, and with respect to his diagnoses of trace nuclear cataracts and self-reported occasional dry, itchy eyes, the July 2007 VA examiner opined that the Veteran has no eye or visual system problems caused by or a result of his head trauma. Rather, his eye and visual systems were normal for his age. As indicated previously, the July 2007 VA examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board accords great probative weight to his opinion. There is no contrary medical opinion of record. Additionally, with respect to the Veteran's contention that he has a current eye disorder related to his military service, to include his in-service motor vehicle accident with a resulting head injury, as a lay person, he is not competent to render such a complex medical opinion. In this regard, he is competent to describe an in-service injury, such as the motor vehicle accident, as well as his current eye symptoms; however, as the cause of a disability of the eyes involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, he is not competent to render such a complex medical opinion. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert, supra (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that service connection for an eye disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for an eye disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Headaches The Veteran asserts that he has headaches that are related to his military service, specifically, his in-service motor vehicle accident. The Board notes that, according to the service treatment records noted above, he reported headaches while he was in the hospital after his accident. The Veteran also reported headaches, as well as occasional dizziness, in July 1981 when he was seen for abdominal cramping and occasional bleeding on stools. The diagnosis was viral upset to the gastrointestinal tract. Additionally, in July 1982, he complained of occipital headaches, as well as vomiting and a burning sensation in the stomach, and was diagnosed with gastrointestinal upset. The remainder of the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to headaches. At the Veteran's July 2007 VA eye examination, he reported that he had headaches behind his eyes, which were noted to fall into the migraine category, that dated back to his military service. Headaches were diagnosed, but no opinion was offered as the examiner noted that such should be determined by an individual other than an ophthalmologist. Also in July 2007, the Veteran was afforded a brain and spine cord VA examination. As such time, he reported having headaches for 23 years and described the symptoms associated with such headaches. Following a physical examination, the examiner noted a history of apparently a rather minor blunt head trauma secondary to a motor vehicle accident with a normal CT scan at the time. He further observed that the Veteran returned to duty the following day. The examiner diagnosed headaches that were frequent, but relatively mild and easily controlled. He opined that, as there was no history of physical findings to suggest significant head trauma at the time of the Veteran's motor vehicle accident, it is as likely as not that the Veteran's headaches are not directly related to his motor vehicle accident. As indicated previously, the July 2007 VA examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board accords great probative weight to his opinion that the Veteran's headaches are not related to his motor vehicle accident. There is no contrary medical opinion of record. The Board notes that the examiner did not address whether the Veteran's headaches are otherwise related to his military service; however, as previously discussed, the Board finds that such an opinion is not necessary to decide the claim. Specifically, while the Veteran's service treatment records demonstrate complaints of headaches on two occasions prior the motor vehicle accident, such were made in connection with gastrointestinal illnesses. There is no indication that the Veteran complained of standalone headaches during service. Furthermore, while the Veteran reported at the July 2007 VA eye examination that his headaches date back to service, he indicated at the July 2007 VA brain and spinal cord examination that such had been present for 23 years, which places the onset in 1984, after his discharge from service. Moreover, outside of the Veteran's gastrointestinal-related complaints and his accident, his service treatment records are negative for any complaints of headaches. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, supra. In light of the Veteran's conflicting statements of record and, as his contention that his headaches, noted to be migraines in nature, date back to service is contradicted by contemporaneous objective evidence, the Board finds them to be not credible. Moreover, despite addressing various other complaints and disorders, post-service private and VA treatment records are negative for complaints referable to headaches. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). With respect to the Veteran's contention that he currently has headaches related to his military service, to include his in-service motor vehicle accident with a resulting head injury, as a lay person, he is not competent to render such a complex medical opinion. In this regard, he is competent to describe an in-service injury, such as the motor vehicle accident, as well as his current headaches; however, as the cause of such a disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, he is not competent to render such a complex medical opinion. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert, supra (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that service connection for headaches is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for headaches. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. C. Service Connection for Drug and Alcohol Abuse The Veteran states that his drug and alcohol abuse are due to his military service. His service treatment records are negative for any indication of drug or alcohol abuse. Post-service private and VA treatment records document a history of substance and alcohol abuse. At the Veteran's August 2007 VA examination he reported that he began drinking heavily at 17 and developed a problem. He also indicated that he smoked marijuana and used amphetamines for 12 years. The August 2007 VA examiner stated that the Veteran's chronic alcohol and drug dependence were not due to or caused by his military service. The Board finds that service connection for primary drug and alcohol abuse is precluded as a matter of law. In this regard, with respect to claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. Specifically, service connection cannot be established for a disability resulting from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1131; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. Libertine v. Brown, 9 Vet. App. 521 (1996); 38 C.F.R. §§ 3.1(n), 3.301. The Board notes that the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. 2001). In the instant case, the Veteran is not service-connected for any disabilities. Moreover, he has not claimed that such abuse is secondary to any disability, to include those addressed in the remand section of this decision. Rather, he has contended solely that his drug and alcohol abuse is directly related to his military service. As such, service connection for such primary drug and alcohol abuse is precluded as a matter of law. Therefore, the Board finds that service connection for drug and alcohol abuse is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for drug and alcohol abuse. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER As new and material evidence has not been received to reopen the claim for service connection for head injury with severe concussion, the appeal is denied. Service connection for an eye disorder is denied. Service connection for headaches is denied. Service connection for drug and alcohol abuse is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As relevant to the Veteran's application to reopen a claim for service connection for a psychiatric disorder, a remand is necessary to provide the Veteran with notice in compliance with Kent, supra. In addition, outstanding private treatment records must be obtained. Specifically, in a November 2006 VA treatment note, a VA case manager discussed an August 2006 private clinical interview with Dr. J.R. at Larned Hospital where the Veteran was given an Axis I diagnosis of an adjustment disorder with disturbance of conduct; however, such private treatment report is not of record. Thus, the Board finds that a remand is necessary in order to obtain such outstanding private treatment records. The Board finds that the issues of entitlement to service connection for left leg, neck, left arm, and back disorders should be remanded in order to afford the Veteran a new VA examination. In this regard, he was provided with a VA examination in July 2007, at which time the examiner offered the following opinion: Causal relationship is probably a question. This [V]eteran gives a history of having difficulty in all of the areas diagnosed above when he was in [the] military. I am not sure whether the service [treatment] records substantiate treatment for these problems, but he says that all of these difficulties had symptoms in [the] military. He denies being totally well at any of these area for even two months since leaving [the] military. He denied any injuries to these areas since leaving [the] military. In my opinion, it is more likely than not that the problems diagnosed above are a continuation of difficulties in [the] military. Unfortunately, there may not be enough treatment records to substantiate this, however. As such opinion is confusing, speculative, and is directly contradicted by the Veteran's service treatment records that are negative for such disorders, the Board finds that the Veteran should be afforded another VA examination so as to obtain an adequate nexus opinion regarding these issues. The Board also finds that the Veteran should be afforded a VA audiology examination regarding his claim of entitlement to service connection for bilateral hearing loss. The Veteran has not been afforded a VA examination in connection with such claim; however, a November 2006 VA treatment note stated " + hearing problems 'military related'." Therefore, the Veteran should be afforded VA audiology examination to determine if he has a current diagnosis of bilateral hearing loss and if such is related to his military service. Finally, with respect to all of the remaining claims, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for such disorders and, thereafter, any identified records, to include VA treatment records dated September 2009 to the present, should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided VCAA notice in compliance with Kent, supra, as relevant to his application to reopen his previously denied claim for service connection for a psychiatric disorder. 2. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his psychiatric disorder, left leg disorder, neck disorder, left arm disorder, back disorder, and bilateral hearing loss. After securing any necessary authorization from him, obtain all identified treatment records, to include those from J.R. at Larned Hospital dated in August 2006 and any VA treatment records dated from September 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination so as to determine the nature and etiology of his left leg, neck, left arm, and back disorders. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. (A) The examiner should provide diagnoses of all current disorders of the left leg, neck, left arm, and back. (B) For each currently diagnosed disorder of the left leg, neck, left arm, and back, the examiner should offer an opinion as to whether such are at least as likely as not related to the Veteran's military service, to include his in-service motor vehicle accident. Any opinions expressed must be accompanied by a complete rationale. 4. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination so as to determine the nature and etiology of his claimed bilateral hearing loss. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished, including the Maryland CNC test and a puretone audiometry test, and all clinical findings should be reported in detail. The examiner should indicate whether the Veteran has bilateral hearing loss. If so, he or she should offer an opinion as to whether such is at least as likely as not related to his military service. Any opinions expressed must be accompanied by a complete rationale. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 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. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs