Citation Nr: 1324835 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 06-17 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for anxiety reaction. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from May 1963 to May 1966 and in the United States Air Force from September 1966 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2006, the Veteran testified at a hearing at the Central Office before the undersigned; the transcript is of record. In May 2013 the Veteran requested a hearing. However the Veteran has already had a Board hearing before the undersigned addressing the three issues on appeal. In pertinent part, under Rule 703, an appellant, or an appellant's representative, may request a hearing before the Board of Veterans' Appeals.(emphasis added) 38 C.F.R. § 20.703. As a hearing (singular) has already been conducted addressing the issues on appeal before the undersigned, the request for another hearing is denied. In an August 2009 decision, the Board recharacterized the issues and remanded the claims for further development. In October 2010 the Board remanded the claims for compliance with the prior remand instructions to provide proper notice, and additionally to obtain VA records and readjudicate the claims. In June 2012 the Board again remanded the above claims to comply with the October 2010 instructions to readjudicate all the claims. An October 2012 Supplemental Statement of the Case (SSOC) adjudicated two of the three claims. The June 2012 Board remand requested two new VA examinations for eye disability and GERD, which have been completed. In February 2013 the Board remanded the claim to obtain Social Security disability records, which are now part of the record, and for adjudication of all three issues on appeal which was completed in a May 2013 SSOC. The prior remand has been substantially complied with. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. In a September 1986 decision the Board denied service connection for a psychiatric disorder (anxiety reaction). No additional relevant service treatment records were received. The decision is final. 2. Evidence submitted since the Board's September 1986 decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for an anxiety reaction. 3. A current eye disability did not incur in service nor is it related to any injury or disease in service. 4. Gastroesophageal reflux disease (GERD) did not incur in service nor is it related to any injury or disease in service. CONCLUSIONS OF LAW 1. The September 1986 Board decision that denied entitlement to service connection for psychiatric disorder (anxiety reaction) is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 3.156(c), 20.1100(a), 20.1104 (2012). 2. The criteria for reopening the claim for service connection for an anxiety reaction are not met. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for an eye disability have not been met. 38 U.S.C.A. 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 4. The criteria for service connection for gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C.A. 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A December 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). An October 2010 notification letter informed the Veteran of the evidence and information necessary to reopen the claim for service connection for anxiety reaction, including the basis on which the prior claim was denied by the Board in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The issue was readjudicated in a May 2013 SSOC. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. Although additional VA treatment records from 1995 through 1997 were requested, the VA Medical Center (VAMC) in Atlanta has reported that there were no such outpatient treatment records from that date range. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in February 2012. 38 C.F.R. § 3.159 (c)(2). VA examinations conducted in March 2010 were found to be inadequate and new examinations were conducted in June and July 2012 with an addendum in September 2012. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to the cause of the Veteran's current disabilities. A VA examination was not conducted in connection with the claim to reopen service connection for an anxiety reaction, as one was not required. In the absence of new and material evidence, VA is not required to provide an examination to a claimant attempting to reopen a previously disallowed claim. Paralyzed Veterans of Am. v. Sec 'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003); Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.159(c)(4)(iii). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the November 2006 Board hearing, the VLJ identified and fully explained the issues on appeal, and asked questions focused on new and material evidence and the elements of service connection needed to substantiate the Veteran's claim. Furthermore, the VLJ specifically questioned the Veteran regarding outstanding and potentially pertinent records that may have been overlooked, and suggested that such records be obtained. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence In a September 1986 decision the Board denied service connection for a psychiatric disorder, finding that the anxiety reaction was not shown during the first period of service, that the anxiety reaction clearly and unmistakably existed prior to the second period of active service and that the preexisting anxiety reaction was not aggravated by active service. No additional relevant service treatment records were received. The decision is now final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(c), 3.160(d) (2012). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Since the last final denial, new evidence has been received, including the Veteran's testimony at the Board hearing, VA treatment records and private treatment records. The Veteran's testimony includes his report that he was hospitalized for his anxiety condition in August 1966 in between periods of service, that he was found to be sound upon entry to the Air Force and that he was discharged from service due to his anxiety. The Veteran's testimony is not new and material as it is duplicative of evidence of record that was before the Board in September 1986. Multiple copies of service treatment records were received but they are duplicative of evidence already of record. VA and private treatment records show ongoing post service treatment for psychiatric disorders, to include anxiety and depression. This evidence, while new, is not considered to be "new and material evidence" as it does not address the crucial question of whether the Veteran's preexisting anxiety reaction was aggravated in service, nor would the evidence reasonably substantiate the claim were the claim to be reopened. The Board finds that no new and material evidence has been received to reopen the claim for anxiety reaction. Absent competent medical evidence demonstrating that the Veteran's anxiety reaction was aggravated during the second period of active service (between September 1966 and August 1967) the newly submitted evidence is not material. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463,467 (1993); see also Gilbert v. Derwinski, 1 Veteran. App. 49, 55 (1990). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The claimed disabilities at issue in this case have not been shown to be 'chronic diseases' listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning this claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. 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, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Eye disability The Veteran contends that he has a current eye disability that is related to service, specifically when a piece of metal got in his eye. Service treatment records show that the Veteran was seen in April 1965 with a complaint of a foreign body in the left eye for which a patch was prescribed. In July 2012 a VA examination was conducted. The examiner evaluated the Veteran and diagnosed bilateral proliferative diabetic retinopathy, and bilateral clinically significant macular edema. The examiner noted the Veteran's history of being diagnosed with diabetes in 1985 with a long history of uncontrolled blood sugars and noncompliance. The Veteran began having diabetic retinopathy in 2001 with progression to proliferative diabetic retinopathy in 2007. The examiner reported that these eye conditions (diabetic retinopathy and macular edema) are only found in uncontrolled diabetes and opined that they are therefore not at least as likely as not related to service. Other eye conditions were also addressed. The examiner reported that the Veteran has a nuclear sclerotic cataract in his right eye and explained that this type of cataract occurs with normal aging of the eye and is unrelated to military service. Upon evaluation the examiner noted that there is a corneal scar in the left eye. The examiner opined that the corneal scar was less likely than not incurred in or caused by an injury or disease in service, explaining that the Veteran has a peripheral corneal scar in the left eye diagnosed in 2001 and that there was no history of this corneal scar in service. The examiner noted that the etiology of this corneal scar was never determined but given the appearance and location of the lesion it is likely that it is Terrien's marginal degeneration which is an idiopathic thinning of the peripheral cornea. The examiner reported that the corneal scar has been stable for over a decade and the Veteran did not have any irregular astigmatism or other sequelae. The examiner also addressed the Veteran's history of a foreign body in the eye which was treated in service. At the examination the Veteran reported that his right eye was the one affected, but the service treatment records indicate it was the left eye, "foreign body near lateral edge of left cornea." While the examiner appears to have specifically addressed the right eye when addressing in service incident, the examiner did in fact evaluate the left eye during the examination when he addressed the left corneal scar and provided an opinion as to the etiology. The examiner concluded overall that the Veteran's vision is limited from a cataract OD and diabetic retinopathy. The Veteran testified that he thought his eye condition should be secondarily service connected due to his diabetes. The Veteran's claim for service connection for diabetes was denied in an August 2009 Board decision and affirmed by the Court of Appeals for Veterans Claims in January 2011. As the Veteran is not service connected for diabetes mellitus, there is no basis for secondary service connection. The Veteran is competent to report what he experiences through his five senses, such as a foreign body in the eye, or difficulty seeing. See, Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran is competent to report what he experiences, he is not competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). While the Veteran contends his current eye disability is related to service, he is not competent to provide such a medical opinion as he does not have the requisite medical knowledge to determine that a foreign body in the eye in 1965 caused diabetic retinopathy, macular edema, cataracts or a corneal scar in 2012 as this is not within the realm of common knowledge. His opinion is outweighed by the medical opinion of record which explained that diabetic retinopathy and macular edema were due to uncontrolled diabetes, cataracts were due to aging, and that the left corneal scar was due to an idiopathic thinning of the peripheral cornea. The weight of the competent medical evidence is against a finding that the Veteran's current eye disability began in service or is otherwise related to any injury or disease in service. The weight of the evidence is against the claim; there is no doubt to be resolved and service connection for an eye disability is denied. GERD The Veteran contends that his GERD is related to stomach problems and abdominal pain he had in service. Service treatment records show that the Veteran was seen on five occasions for abdominal pain, upset stomach, and diarrhea. In August 1964 the Veteran was seen for abdominal pain and was given an antacid and anti flatulence. In September 1964, the provider stated he had FBD or functional bowel disease, and was prescribed Donnatal (used to treat irritable bowel syndrome and acute enterocolitis) and Gelusil (antacid and antiflatulent). In February 1965 the Veteran had stomach complaints, vomiting, and diarrhea of short duration, noted to be subsiding gastroenteritis. In February 1967 the Veteran was seen for abdominal pain, no vomiting. In November 1967 the Veteran was seen for abdominal pain, nausea, vomiting, and headache. An upper GI series was negative. In June 2012 a VA examination was conducted. At the time the Veteran reported GERD symptoms of daily reflux, sensation of food getting stuck in his throat and substernal region. When he has gastric reflux he can't eat anymore. He reported left arm and shoulder pain, occasional nausea and vomiting but no signs of blood in his emesis and no melena. He reported being on medication to treat GERD but denied diagnosed ulcers, required blood transfusions or hospitalization for his GERD symptoms. The examiner opined that it was less likely than not that the Veteran's GERD condition was incurred in or caused by any injury in service, noting that there was no evidence of clinical symptoms, diagnosis or treatment for any GI disturbance; no injuries, events or illnesses related to the GI tract; and the first treatment for GI or GERD symptoms was in 2001, 34 years post service. In September 2012 a lengthier VA claims review summary and opinion was provided by the same June 2012 VA examiner. The examiner opined that it was less likely than not that the Veteran's GERD condition was incurred in or caused by any injury, event or illness related to service. The examiner's rationale was that the Veteran had 5 occasions of stomach or abdominal complaints with diagnosis of functional bowel distress and resolving gastroenteritis. The examiner explained that the symptoms of abdominal pain or stomach problems are vague complaints and there are many differential diagnoses that are considered when assessing a patient with these complaints. In the Veteran's case, in some visits, the Veteran had diarrhea associated with his abdominal distress which is not typically a symptom associated with GERD. The Veteran DID NOT (emphasis included in original) report heartburn or dysphagia which are two of the three most common symptoms of GERD. He reported vomiting which may have represented regurgitation. Based on a review of the treatment records, GERD could not be diagnosed based on the presenting symptoms. The examiner noted that until 1999 there is no evidence to support symptoms of a chronic GI disease and more specifically there is not a GERD diagnosis. The first noted treatment for GI and GERD symptoms was in 2001, 34 years post service. As noted previously, the Veteran is competent to report what he experiences through his five senses, such as abdominal pain, regurgitation, vomiting, etc. See, Layno v. Brown, 6 Vet. App. 465 (1994). Although the Veteran is competent to report what he experiences, he is not competent to diagnose a condition or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report his symptomatology, and the Board finds his reports as to symptomatology to be credible. The Veteran's opinion that his in service stomach complaints are related to his current GERD is of little, if any, probative value and is outweighed by the medical opinion of record which explained that the Veteran's in service symptomatology could not be diagnosed as GERD, noting importantly that the Veteran did not report heartburn or dysphagia (difficulty swallowing) along with his abdominal and stomach complaints during service and that there were no symptoms of a chronic GI disease or GERD until many years after service. The weight of the competent medical evidence does not find that the Veteran's GERD began in service or is otherwise related to any injury or disease in service. The weight of the evidence is against the claim; there is no doubt to be resolved and service connection for GERD is denied. ORDER New and material evidence has been received, the petition to reopen a claim for service connection for anxiety reaction is denied. Service connection for an eye disability is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs