Citation Nr: 1501626 Decision Date: 01/13/15 Archive Date: 01/20/15 DOCKET NO. 13-15 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a salivary gland disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disorder, including as due to exposure to ionizing radiation. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disorder, including as due to exposure to ionizing radiation, and, if so, whether service connection is warranted. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic pain syndrome, including as due to exposure to ionizing radiation, and, if so, whether service connection is warranted. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a headache disorder, including as due to exposure to ionizing radiation, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to October 1959 and November 1960 to November 1964. This appeal to the Board of Veterans' Appeals (Board) is from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In this decision, the Board is remanding the claim pertaining to the right shoulder disorder to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The RO denied the Veteran's claims of entitlement to service connection for a respiratory disorder, chronic pain syndrome, and a headache disorder in an April 2009 rating decision. The Veteran was notified of the decision, but he did not file an appeal. 2. Evidence obtained since the April 2009 rating decision raises a new theory of entitlement to service connection for a respiratory disorder, chronic pain syndrome, and a headache disorder. 3. The Veteran's service treatment records show he was exposed to a radioactive substance from April 1957 to April 1958. 4. The Veteran has been diagnosed with chronic pain syndrome, headaches, and depression and anxiety, which are not considered to be radiogenic diseases. 5. The Veteran's chronic pain syndrome and headache disorder first manifested many years after service and are unrelated to any incident of service, including exposure to ionizing radiation. 6. The most probative evidence of record shows the Veteran does not currently have a diagnosis of a respiratory disorder. 7. The most probative evidence of record shows the Veteran does not currently have a diagnosis of a salivary gland disorder. 8. The most probative evidence of record shows the Veteran does not currently have an acquired psychiatric disorder that is attributable to his military service. CONCLUSIONS OF LAW 1. The April 2009 rating decision which denied entitlement to service connection for a respiratory disorder, chronic pain syndrome, and a headache disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence has been received in order to reopen the claims of entitlement to service connection for a respiratory disorder, chronic pain syndrome, and a headache disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2014). 4. The criteria for service connection for a salivary gland disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2014). 5. The criteria for service connection for chronic pain syndrome have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2014). 6. The criteria for service connection for a headache disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2014). 7. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). To reopen a previously denied claim, this VCAA notice must: (1) notify the Veteran of the evidence and information necessary to reopen the claim (i.e., by describing what is meant by new and material evidence); (2) identify what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial of the claim on the merits; and (3) provide general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and any applicable legal precedent. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was notified of these requirements in July 2012, prior to the August 2012 denial of his claim on the merits. The RO also notified the Veteran of the information and evidence needed to substantiate his claims of service connection together with the general criteria for assigning disability ratings and effective dates in an April 2012 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Relevant to the duty to assist, the Board notes that the Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. The Veteran has also been provided a VA neurological examination in April 2009 in connection with his claim for headaches. The RO did not afford the Veteran VA examinations for the remaining claims on appeal on the basis that there is already sufficient medical evidence to decide the claims, and the Board agrees. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.156(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. Here, the Veteran does not have diagnoses of a respiratory or salivary gland disorders. Further, while he has been diagnosed with chronic pain syndrome and anxiety, there is no basis to conclude these disorders are associated with an in-service event, as discussed below in detail. The only evidence supporting the contention is the Veteran's statements. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merit); see also 38 C.F.R. § 3.159(c)(4)(i). Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). Thus, the Board finds that VA has fully satisfied the duty to assist, and it may proceed to an adjudication of the claim. II. New and Material Evidence The Veteran's claims of service connection for a respiratory disorder, chronic pain syndrome, and a headache disorder were previously denied in an April 2009 rating decision. The Veteran did not file any statement indicating disagreement with the prior decision and no new and material evidence was physically or constructively received within one year of the determination. Accordingly, the April 2009 rating decision is now final. See 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2014). Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The 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." In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior April 2009 determination, the evidence of record included service treatment records, VA treatment records dated through 2009, and the report of an April 2009 VA neurological examination. The Veteran's claim concerning a respiratory disorder was initially predicated upon his exposure to asbestos during his military service. This claim was denied because neither the Veteran's service treatment records nor VA treatment records showed a diagnosis of a respiratory disorder. The remaining claims for chronic pain syndrome and headaches were denied because there was no evidence attributing these disorders to his military service. In April 2012, the Veteran filed a petition to reopen these claims. The Veteran now alleges these disorders are due to radiation exposure. Further, his September 1959 separation examination notes the Veteran was exposed to radioactive substances from April 1957 to April 1958. As noted above, the regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim "must be read as creating a low threshold." As such, the Board finds that the Veteran's new theory of entitlement meets this low threshold as to permit reopening. III. Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases (all of which are cancers, leukemia, multiple myeloma, or lymphomas) that may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed Veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Arthritis is not included under that regulation. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Initially it is observed that while the Veteran's service treatment records note that he was exposed to a radioactive substance from April 1957 to April 1958, (he was assigned to Eniwetok), because the claims do not relate to those diseases specific to radiation exposed veterans, or radiogenic diseases, the fact of his exposure does not support the claim, or trigger any particular development under 38 C.F.R. §§ 3.309, 3.311. Respiratory and Salivary Gland Disorders Concerning first the Veteran's claims of entitlement to service connection for respiratory and salivary gland disorders, the Board notes the service treatment records are completely silent regarding any complaints, treatment or diagnoses pertaining to these claims. Specifically, both the September 1959 and November 1964 separation examinations are notably silent regarding any complaints concerning these disorders. Following his separation from service, an April 2008 VA treatment record specifically noted that the Veteran had no problems with his breathing. In March 2012, the Veteran also denied experiencing any chest pain. Further, a December 2013 private treatment record also noted the Veteran denied experiencing dizziness, chest pain, and shortness of breath. There are no references to a salivary gland disorder in either the VA or private treatment records. In fact, the only evidence in support of the Veteran's claim of entitlement to service connection for a respiratory and salivary gland disorder are his own unsubstantiated lay statements. The Board notes he is certainly competent to proclaim having experienced relevant symptoms commonly associated with these disabilities such as difficulty breathing and chest pain, and problems swallowing. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as treatment records.) However, as set out above, VA and private treatment records fail to provide current diagnoses of respiratory or salivary gland disorders. As he does not have these claimed disabilities, a basis for establishing service connection has not been presented. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Chronic Pain Syndrome Service treatment records are completely silent regarding any complaints, treatment or diagnoses of chronic pain syndrome. Following service, a private treatment record dated in March 1994 shows the Veteran was initially diagnosed with chronic pain syndrome in 1992. VA treatment records also reference the Veteran's reports of chronic pain. Most recently, a December 2013 private treatment record notes the Veteran's report of experiencing chronic pain since a 1988 vehicle accident, which occurred 24 years following his separation from service. However, at no point during the course of treatment for this disability is an etiological opinion provided indicating this disorder is attributable to his military service. In fact, the December 2013 private treatment record attributes the Veteran's chronic pain syndrome to a post-service accident. For his part, the Veteran also has made statements to the effect that his chronic pain syndrome is related to service but he is not competent to make such a determination. His statements on etiology are therefore not afforded probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Thus, the greater weight of the evidence in this case is against the conclusion that chronic pain syndrome was incurred in service. Because the evidence preponderates against the claim of service connection for chronic pain syndrome, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Headaches Concerning the Veteran's claim of entitlement to service connection for headaches, service treatment records note he was treated for tension headaches in April 1961. However, there are no further complaints or treatment for headaches during his military service. Additionally, the November 1964 separation examination is silent regarding this disorder. After his separation from service, the Veteran has received treatment for headaches, as indicated by his VA and private treatment records, but these are attributed to the Veteran's 1988 motor vehicle accident when he suffered a traumatic brain injury. In April 2009 the Veteran was provided a VA neurological examination to determine the etiology of his headaches. The examiner noted the 1988 motor vehicle accident at which time the Veteran sustained an injury to his head. Following a review of the claims file and a physical examination of the Veteran, the examiner concluded it was less likely as not that the Veteran's headaches are caused by or a result of his military service. As rationale, the examiner stated the Veteran himself reported the headaches began following the 1988 motor vehicle accident, and are located at the base of the neck and go over the top of the head. Further, the examiner noted the Veteran has severe degenerative disc disease of the cervical spine that is contributing to the headaches. Only the Veteran has attributed his headaches to service, (and not consistently so). However, a probative opinion on the cause of his headache disorder, is beyond the competency of the Veteran as a lay person because it requires medical knowledge and training. In this case, the medical evidence as discussed above does not link the headache disorder to service. In fact, the VA examiner and even the Veteran himself have attributed the current headache disorder to a post-service motor vehicle accident in 1988. Therefore, in light of the foregoing, because the preponderance of the evidence is against the claim, service connection must be denied for a headache disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Acquired Psychiatric Disorder The Veteran asserts he suffers from depression and anxiety as a result of his military service. In his statements, the Veteran asserted that his psychiatric symptoms began in service and were caused by his exposure to radiation. There is no evidence that the Veteran was treated for depression or anxiety in service. Moreover, following service there is no clinical evidence of any treatment or other psychiatric complaints until April 2008, at the earliest, when the Veteran was diagnosed with depression and anxiety. In fact, the Veteran's VA and private treatment records dated through March 2012 and December 2013, respectively, fail to link either depression or anxiety to the Veteran's military experiences. Therefore, the preponderance of the competent evidence is against a finding that an acquired psychiatric disorder is related to service. The only pieces of evidence in support of the Veteran's claim are his unsubstantiated lay statements. Further, the issue of the etiology of the Veteran's diagnosed depression is beyond the competency of the Veteran as a lay person because it requires medical knowledge and training. In this case, the medical evidence as discussed above does not link any diagnosed psychiatric disorder to service. The Board does not question the Veteran's sincerity that he believes he has such a psychiatric disorder that resulted from service. As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. He is not professionally qualified to offer a diagnosis or suggest a possible medical etiology. In light of the foregoing, because the preponderance of the evidence is against the claim, service connection must be denied for an acquired psychiatric disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for a respiratory disorder is denied. Service connection for a salivary gland disorder is denied. Service connection for chronic pain syndrome is denied. Service connection for a headache disorder is denied. Service connection for an acquired psychiatric disorder is denied. REMAND With regards to the Veteran's claim seeking service connection for a right shoulder disorder, the record reflects that this claim was initially adjudicated by a final rating action issued in April 2009, thereby requiring the submission of new and material evidence to reopen the previously denied claim. However, the record does not reflect that the Veteran has been provided with the notice required for such a claim to reopen concerning this disorder. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with appropriate notice regarding the information and evidence necessary to reopen his claim of entitlement to service connection for a right shoulder disorder. The letter should inform the Veteran that his claim was previously denied by a final April 2009 rating decision because the medical evidence of record did not support a finding that a current right shoulder disorder is due to his military service. 2. The RO should then complete any additional development deemed appropriate, and re-adjudicate the Veteran's claim to reopen. If the full benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow for an appropriate period for response. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that is remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs